JUQCMINT Bo. \S1 / SR ie) US' IA ) ) D STRY ) T. No. 2 of 1988 ) INDUSTRIAL DIVISION ) BETWEEN: OY St. UMMINGS Applicant and WORB. Respondent COURT: NORTHROP J. DATE : 31 MARCH 1988 PLACE: HOBART EX TEMPORE REASONS FOR JUDGMENT The applicant brings these proceedings against the respondent claiming the imposition of a penalty under 5.119 of the Conciliation and Arbitration Act 1904 alleging a breach of an award by the respondent. The respondent, Kathleen Jenny Worbey, carries on business under the name Southern Cartage and Excavators and has carried on that business under that name since 1981. Southern Cartage and Excavators is named as an employer bound by the Australian Workers Union (Construction and Maintenance) Consolidated Award 1987. That business is 2. carried on in the State of Tasmania. That award, by clause 3, is binding on the employer, in this case, Kathleen Jenny Worbey, in respect of the employment of all her employees, whether members of the Australian Workers Union or not, in work done in or in connection with a listed number of differant types of work, including construction of roads, freeways, general engineering and civil engineering works. The respondent is engaged in works of that kind and does employ persons in connection with that work. Accordingly, the award applies to the respondent with respect to those employees. Clause 49 of the award provides for the keeping of records and I read the subclause (a): "The employer shall keep a record of the names of the employees of such employer and in respect of each employee a_ record fortnightly of the periods times and class of work done and the rate of wages and amount of wages paid and shall obtain fortnightly the signature of such employee to such record." In the present case I am satisfied, from the evidence of the applicant, Roy Stanley Cummings, who is an inspector within the meaning of the Conciliation and Arbitration Act, that on 22 December 1987 he interviewed the respondent and during the course of that interview she admitted to him that she did employ three persons, being the persons named in the application and statement of clain, namely Doug Worbey, Doug McConnon and Bruce Sullivan, and those persons were engaged as a labourer, a plant operator 3. and a plant operator respectively and were employed in connection with the type of work described earlier in these reasons in the construction and maintenance of roads, freeways and civil engineering works generally. She also said that she did not keep time records in accordance with clause 49(a) but the three persons had been employed since 1 September 1987 and were still employed at the time of the interview on 22 December 1987. The reason she gave was: it is just too much trouble, there had been no worries as far as the employees were concerned, they did not want to sign any time records and she had not kept them in accordance with clause 49. On all the material I am satisfied that the respondent has committed a breach of clause 49 of the award, and the question arises as to what penalty should be imposed. I refused to admit evidence as to prior proceedings in which the respondent may have had a penalty imposed upon her for breaches of the award. There was no allegation of any such prior penalties in the statement of claim. The respondent did not appear at the first directions hearing at which this matter was directed to be heard today. The respondent does not appear today and in those circumstances I take the view it would be unfair on the respondent to allow evidence of a matter not alleged against her in the statement of claim to be given in support of a penalty. Under sub-section 119(1) of the Conciliation and Arbitration Act, where any person bound by an award has 4. committed a breach or non-observance of a term of the award, the Court may impose a penalty on that person. Sub-section (1A) provides:- "(1A) Subject to sub-sections (1B) and (1C), where a Court finds that 2 or more breaches by the sane 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 tern." Sub-sections (1B) and (1C) have no application to the facts of this case. Under sub-section (1D) the maximum penalty that may be imposed under sub-section (1) in respect of a breach of an award is, where the penalty is imposed by the Federal Court, the sum of §1000. In the present case the application alleges one breach only although it relates to three different employees. The statement of claim alleges one breach only and in those circumstances it is not necessary to apply sub-section 119(1A). Iam satisfied that a breach has occurred. It occurred where the respondent deliberately refused or failed to keep or to observe clause 49(a) and in those circumstances this is a case where a substantial penalty should be imposed. The maximum penaity is §1000 and I propose to impose a penalty of $500. 5. In the absence of any further order that penalty will be paid into the Consolidated Revenue Fund. Ido not propose to make any other order, see 8.120 of the Conciliation ang Arbitration Act. Under that Act no order for costs can be made in proceedings of this kind. Order accordingly. I certify that this and the fur oD) preceding pages are a true copy of the Reneons for Judgment herein of the Honourable Mr. Justice R .™M- Northrop Ghar P.ADUI01 Associate Dated: 31 March 1988