1 This judgment is concerned with the imposition of a civil penalty on three companies operating within a group of companies engaged in the transport industry in the Tamworth area. The proceedings were instituted by the prosecutor Transport Workers' Union of New South Wales under s 357 of the Industrial Relations Act 1996 ("the Act"). Relevantly, s 357(1) makes provision for the imposition of a pecuniary penalty not exceeding $10,000 by way of a civil penalty for the contravention of a provision of an industrial instrument.
2 The defendants have pleaded guilty to each of the contraventions alleged against them in each of the nine summonses and this judgment is concerned only with the question of penalty and costs.
3 For completeness, I note that in each of the summonses the prosecutor sought orders for the payment of monies representing the amount of alleged underpayment of the relevant industrial instrument and sought also orders in the nature of an injunction under s 359 of the Act. As will be seen, all outstanding monies have been paid by the defendants and the prosecutor did not pursue any application for orders for the recovery of unpaid monies. Furthermore, the prosecutor did not pursue any orders for the grant of an injunction to restrain the commission of further contraventions.
4 The summonses allege in the aggregate a breach of three provisions of the Transport Industry (State) Award. The first is a failure to pay overtime in accordance with Clause 5.1 of the Award which in summary form provides for the payment of overtime monies at the rate of time and one half for the first two hours and double time thereafter. The second breach is of Clause 6.1.1 of the Award which requires payment of work on a Saturday at a rate of time and a half for the first two hours and double time thereafter. The third relates to Clause 17.2 of the Award which provides for payment of a leave loading whilst an employee is on annual leave based on a calculation of three and one third hours ordinary pay for each month of leave.
5 The defendant Carey's Warehousing and Distribution Pty Ltd pleaded guilty to having breached each of the provisions of the Award with respect to its employee Allan Pollock with a consequent underpayment of $1,383.84 between the period 1 July 2005 until 31 January 2006.
6 The defendant Chemso Pty Ltd pleaded guilty to a failure to pay its employee Patrick Whale overtime under Clause 6.1 of the Award and the annual leave loading under Clause 17.2 over the same period. The amounts involved were $635.67 and $68.83 respectively.
7 The defendant Carey's Freight Lines (Tamworth) Pty Ltd pleaded guilty to a failure to pay its employee David Hall in accordance with Clause 6.1.1 and the annual leave loading under Clause 17 over the same period. The amounts involved totalled $811.92.
8 The defendant Antarca Pty Ltd pleaded guilty to a failure to pay its employee Barry Finlay overtime under Clause 6.1.1 of the Award and overtime under Clause 5.1 of the Award, the amount involved totalling $410.95.
9 The evidence given in the proceedings indicates that there were negotiations between representatives of the prosecutor and representatives of the defendant group of companies in August and September 2005. The union was pursuing an enterprise agreement that included, inter alia, payment for double time on Saturdays. It is clear from a series of emails between representatives of the defendant group of companies that double time was not then being paid for overtime and Saturday work.
10 Furthermore, an affidavit of Todd Anthony Dunne an employed organiser of the prosecutor, which was admitted into evidence without objection, is indicative that in the discussions between representatives of the prosecutor and the defendant group of companies in August 2005, Mr John Carey, the managing director of each of the defendants, was informed that there was a breach of the Award in the defendants having failed to pay double time to their employees for Saturday work and overtime. Mr Carey is alleged to have said "....I've just never paid double time to my employees."
11 It was accepted by both the prosecutor and the defendants that the Carey group of companies were owned by the Carey family and had operated in the Tamworth area for about 60 years. The group of companies employs about 110 employees and is one of the largest employers in the Tamworth area. A major client is the Woolworths Limited organisation. It was said that the group was a good corporate citizen in that it sponsored a number of sporting teams in the area, provided free transportation for charitable events in the area including the transportation of persons in connection with the activities of the local hospital. I shall take into account these activities in assessing penalty.
12 All of the defendant companies have common directors and shareholders being John Thomas Carey and Michael John Carey.
13 The summonses, which have given rise to these prosecutions, were filed on 24 March 2006. The court was informed that they were served on 12 April 2006 and that all outstanding payments, which were the subject of each of the summonses, were made on 15 April 2006.
14 It was also common ground between the parties that the defendants had not previously been convicted of any offence with respect to underpayment of entitlements under any industrial instrument and the defendants had indicated that they would plead guilty to each of the offences at the earliest opportunity. Furthermore, the defendants had examined all of their pay records and all employees (presumably within the total group of companies) had received payment of any amounts not then paid to them under any relevant industrial instrument. It was submitted on behalf of the defendants that this conduct should be accepted as a mark of their contrition and an indication of their remorse as well as evidence of an intention to comply in the future with the provisions of any applicable industrial instrument. I propose to proceed on this basis.
15 The starting point for the assessment of an appropriate penalty is a consideration of the objective seriousness of the offences with which the defendants are charged. The prosecutor submitted, and I accept, that the failure to comply with the provisions of an industrial instrument is a serious matter. Industrial instruments are designed to provide for minimum rates of pay and working conditions for employees. They are established through mechanisms created by government and are intended to have, and do have, the force of law in terms of their application and the enforcement of duties and obligations imposed by them. I accept also that the obligations set out in the Transport Industry (State) Award are expressed in language that is clear and that there can by no confusion about the manner in which they are to be applied. Indeed, there is no evidence that the defendants were unsure as to any obligations imposed upon them by the Award.
16 The defendants submitted that, in effect, these were not serious breaches because the total amount of all underpayments was of the order of $3,300 and the maximum amount claimed in any individual summons was $869. It was said that these are not large amounts and therefore the breaches were not serious. I am not persuaded by this submission. The underpayment of any wages will always be a serious matter, particularly from the perspective of an employee. The situation might have been different had the breaches arisen as a result of some inadvertent mathematical calculation. Here, however, there is evidence of a systematic refusal to pay overtime, for time worked on Saturdays at the rate provided for in the Award, being double time and annual leave loadings. These are breaches that cannot be condoned and which, in my opinion, supports a conclusion that viewed objectively each of the breaches is a serious one by reference to the circumstances in which it occurred.