In 2003, the respondent, Expoconti Pty Ltd, a partitioning and plastering subcontractor corporation, made payments of $2582.49 to 15 employees at the Concept Blue site and $894.38 to 13 employees at the University of Melbourne Bio21 Project for periods on 5 and 6 August 2003 during which those employees were engaged in industrial action.
On 5 August 2003, nearly all the Concept Blue employees had sat in the sheds while a site safety audit was conducted by the CFMEU without resuming work that day. On the same day, nearly all the Bio21 employees had sat in the sheds during a site safety audit by the CFMEU, resuming work from 1:00pm to 3:00pm. On 6 August 2003, nearly all the Concept Blue employees had refused or failed to perform work between 7 and 10 am during CFMEU-organised meetings.
The respondent co-operated with the applicant, Taskforce Inspector Pine, who prosecuted the respondent for breaches of s 187AA of the Workplace Relations Act 1996 (Cth) for paying its striking employees. The parties put an agreed statement of facts to the court and the applicant sought a declaration of breach and a penalty to be imposed for the breaches.
Decision
Kenny J. granted the declaration that the respondent breached s 187AA for making strike payments to its Concept Blue and Bio21 employees. Her Honour declined to impose a penalty in view of the following exceptional factual elements:
• Expoconti’s director, who knew that his employees had sat in the sheds on those days, made the payments because he believed that there was a genuine safety audit that prevented the employees from working;
• Expoconti’s director was not aware of the specific requirements of the Act that meant that the payments contravened s 187AA;
• Expoconti revised its policy to prevent a recurrence of unlawful strike pay and did not seem likely to repeat the breach;
• Expoconti had breached Part VIII of the WR Act for the first time with these payments;
• Expoconti did not oppose the application from its inception and voluntarily raised the Bio21 matter for consideration in the application;
• Expoconti incurred no harm from the stoppages, because the Concept Blue site was finished on time and within budget. Though the Bio21 site was not finished on time and within budget, the stoppages did not have ‘any real impact’ on the Bio21 site; and
• Expoconti incurred significant costs in defending the proceeding.
Her Honour considered that general deterrence was not appropriate for a penalty in this case, because that objective was well served by the time and cost that the proceeding imposed on Expoconti. No penalty should be imposed in the interests of parity with similar cases with no penalty imposed that were brought in relation to the same industrial action (Ponzio v Firebase Sprinkler Systems Pty Ltd [2005] FCA 733; Ponzio v D & E Air Conditioning Pty Ltd [2005] FCA 964.)