Kelly v Fitzpatrick [2007] FCA 1080

FEDERAL COURT OF AUSTRALIA

Kelly v Fitzpatrick [2007] FCA 1080

WORKPLACE RELATIONS – Penalty hearing – Admitted contraventions of Transport Workers Award 1998 – Underpayment of wages to employee – Where multiple breaches of award arose out of single course of conduct – Relevant considerations in determining level of penalty – Penalty determined Crimes Act 1914 (Cth) s 4AB Transport Workers Award 1998 Workplace Relations Act 1996 (Cth) ss 719, 841 Workplace Relations Regulations 2006 ch 7 reg 2.14 Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (2001) ATPR 41-815 referred to Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 referred to CPSU v Telstra Corporation Limited (2001) 108 IR 228 considered Gibbs v The Mayor, Councillors and the Citizens of the City of Altona (1992) 37 FCR 216 referred to Johnson v R (2004) 205 ALR 346 referred to Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 followed Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 referred to LAUREN MAREE KELLY v WILLIAM MICHAEL FITZPATRICK AND MARGARET MARIE FITZPATRICK VID 95 OF 2007

TRACEY J

27 JULY 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 95 OF 2007

BETWEEN: LAUREN MAREE KELLY

Applicant

AND: WILLIAM MICHAEL FITZPATRICK

First Respondent

MARGARET MARIE FITZPATRICK

Second Respondent

JUDGE: TRACEY J DATE OF ORDER: 27 JULY 2007

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The first respondent pay the Commonwealth the following penalties for breaches of the Transport Workers Award 1998: (a) $400 for breach of clause 15.1. (b) $1600 for breach of clause 12.5. (c) $1400 for breach of clause 37.2. (d) $40 for breach of clause 33.2.1 (e) $200 for breach of clause 35. (f) $20 for breach of clause 42. 2. Payment of the penalties imposed by Order 1 be made within 60 days.