Hills v Sutton [2007] FCA 2033

FEDERAL COURT OF AUSTRALIA

Hills v Sutton [2007] FCA 2033 WORKPLACE RELATIONS – Conduct of Employer – Where Employees told if they signed Australian Workplace Agreement there would be no change to their terms and conditions of employment – Where Australian Workplace Agreements reduced the quantum of redundancy payments to which the employees were entitled under certified agreement – Where multiple breaches of Workplace Relations Act 1996 (Cth) arose out of single course of conduct – Where respondents admitted liability before serious expense was incurred by the applicant – Relevant considerations in determining level of penalty – Penalty imposed WORDS AND PHRASES – 'permissible range' Workplace Relations Act 1996 (Cth) ss 167(2), 337(1), 337(2), 337(8), 337(9), 340(1)(b), 341, s 401(1), 407, 841.

Kelly v Fitzpatrick [2007] FCA 1080 referred to McIlwain v Lamsay Food Packaging Pty Ltd (2006) 158 IR 181 referred to NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1996) 71 FCR 285 not followed Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 followed SAMUEL HILLS v JAMES SUTTON AND ADAM SUTTON VID 79 OF 2007

TRACEY J

18 DECEMBER 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 79 OF 2007

BETWEEN: SAMUEL HILLS

Applicant

AND: JAMES SUTTON

First Respondent

ADAM SUTTON

Second Respondent

JUDGE: TRACEY J DATE OF ORDER: 18 DECEMBER 2007

WHERE MADE: MELBOURNE

BY CONSENT THE COURT DECLARES THAT:

1 On 5 April 2006 the first respondent contravened s 401(1) of the Workplace Relations Act 1996 (Cth) ("the Act") in respect of Rajmund Rajko Lah. 2 On 5 April 2006 the first respondent contravened s 401(1) of the Act in respect of Emmanuel Portelli. 3 On 5 April 2006 the first respondent contravened s 401(1) of the Act in respect of Mohamed Abdi. 4 On 5 April 2006 the first respondent contravened s 401(1) of the Act in respect of Aaron Renfrey. 5 On 5 April 2006 the first respondent contravened s 401(1) of the Act in respect of Adam Harding. 6 On 5 April 2006 the first respondent contravened s 401(1) of the Act in respect of Bruno Battaglini. 7 On 5 April 2006 the first respondent contravened s 401(1) of the Act in respect of Josip Novakovic. 8 On 5 April 2006 the first respondent contravened s 401(1) of the Act in respect of Rodney Bradley. 9 On 5 April 2006 the first respondent contravened s 401(1) of the Act in respect of Russell Harding. 10 On 18 April 2006 the first respondent contravened s 341(1) of the Act in respect of Rajmund Rajko Lah. 11 On 18 April 2006 the first respondent contravened s 341(1) of the Act in respect of Emmanuel Portelli. 12 On 18 April 2006 the first respondent contravened s 341(1) of the Act in respect of Mohamed Abdi. 13 On 18 April 2006 the first respondent contravened s 341(1) of the Act in respect of Aaron Renfrey. 14 On 18 April 2006 the first respondent contravened s 341(1) of the Act in respect of Adam Harding. 15 On 18 April 2006 the first respondent contravened s 341(1) of the Act in respect of Bruno Battaglini. 16 On 18 April 2006 the first respondent contravened s 341(1) of the Act in respect of Josip Novakovic. 17 On 18 April 2006 the first respondent contravened s 341(1) of the Act in respect of Rodney Bradley. 18 On 18 April 2006 the first respondent contravened s 341(1) of the Act in respect of Russell Harding. 19 On 18 April 2006 the second respondent contravened s 341(1) of the Act in respect of Rajmund Rajko Lah. 20 On 18 April 2006 the second respondent contravened s 341(1) of the Act in respect of Emmanuel Portelli. 21 On 18 April 2006 the second respondent contravened s 341(1) of the Act in respect of Mohamed Abdi. 22 On 18 April 2006 the second respondent contravened s 341(1) of the Act in respect of Aaron Renfrey. 23 On 18 April 2006 the second respondent contravened s 341(1) of the Act in respect of Adam Harding. 24 On 18 April 2006 the second respondent contravened s 341(1) of the Act in respect of Bruno Battaglini. 25 On 18 April 2006 the second respondent contravened s 341(1) of the Act in respect of Josip Novakovic. 26 On 18 April 2006 the second respondent contravened s 341(1) of the Act in respect of Rodney Bradley. 27 On 18 April 2006 the second respondent contravened s 341(1) of the Act in respect of Russell Harding. 28 On 18 April 2006 the first respondent contravened s 337(8) of the Act in respect of Rajmund Rajko Lah. 29 On 18 April 2006 the first respondent contravened s 337(8) of the Act in respect of Emmanuel Portelli. 30 On 18 April 2006 the first respondent contravened s 337(8) of the Act in respect of Mohamed Abdi. 31 On 18 April 2006 the first respondent contravened s 337(8) of the Act in respect of Aaron Renfrey. 32 On 18 April 2006 the first respondent contravened s 337(8) of the Act in respect of Adam Harding. 33 On 18 April 2006 the first respondent contravened s 337(8) of the Act in respect of Bruno Battaglini. 34 On 18 April 2006 the first respondent contravened s 337(8) of the Act in respect of Josip Novakovic. 35 On 18 April 2006 the first respondent contravened s 337(8) of the Act in respect of Rodney Bradley. 36 On 18 April 2006 the first respondent contravened s 337(8) of the Act in respect of Russell Harding. 37 On 18 April 2006 the second respondent contravened s 337(8) of the Act in respect of Rajmund Rajko Lah. 38 On 18 April 2006 the second respondent contravened s 337(8) of the Act in respect of Emmanuel Portelli. 39 On 18 April 2006 the second respondent contravened s 337(8) of the Act in respect of Mohamed Abdi. 40 On 18 April 2006 the second respondent contravened s 337(8) of the Act in respect of Aaron Renfrey. 41 On 18 April 2006 the second respondent contravened s 337(8) of the Act in respect of Adam Harding. 42 On 18 April 2006 the second respondent contravened s 337(8) of the Act in respect of Bruno Battaglini. 43 On 18 April 2006 the second respondent contravened s 337(8) of the Act in respect of Josip Novakovic. 44 On 18 April 2006 the second respondent contravened s 337(8) of the Act in respect of Rodney Bradley. 45 On 18 April 2006 the second respondent contravened s 337(8) of the Act in respect of Russell Harding. 46 On 18 April 2006 the first respondent contravened s 337(9) of the Act in respect of Rajmund Rajko Lah. 47 On 18 April 2006 the first respondent contravened s 337(9) of the Act in respect of Emmanuel Portelli. 48 On 18 April 2006 the first respondent contravened s 337(9) of the Act in respect of Mohamed Abdi. 49 On 18 April 2006 the first respondent contravened s 337(9) of the Act in respect of Aaron Renfrey. 50 On 18 April 2006 the first respondent contravened s 337(9) of the Act in respect of Adam Harding. 51 On 18 April 2006 the first respondent contravened s 337(9) of the Act in respect of Bruno Battaglini. 52 On 18 April 2006 the first respondent contravened s 337(9) of the Act in respect of Josip Novakovic. 53 On 18 April 2006 the first respondent contravened s 337(9) of the Act in respect of Rodney Bradley 54 On 18 April 2006 the first respondent contravened s 337(9) of the Act in respect of Russell Harding. 55 On 18 April 2006 the second respondent contravened s 337(9) of the Act in respect of Rajmund Rajko Lah. 56 On 18 April 2006 the second respondent contravened s 337(9) of the Act in respect of Emmanuel Portelli. 57 On 18 April 2006 the second respondent contravened s 337(9) of the Act in respect of Mohamed Abdi. 58 On 18 April 2006 the second respondent contravened s 337(9) of the Act in respect of Aaron Renfrey. 59 On 18 April 2006 the second respondent contravened s 337(9) of the Act in respect of Adam Harding. 60 On 18 April 2006 the second respondent contravened s 337(9) of the Act in respect of Bruno Battaglini. 61 On 18 April 2006 the second respondent contravened s 337(9) of the Act in respect of Josip Novakovic. 62 On 18 April 2006 the second respondent contravened s 337(9) of the Act in respect of Rodney Bradley. 63 On 18 April 2006 the second respondent contravened s 337(9) of the Act in respect of Russell Harding. THE COURT ORDERS BY CONSENT THAT: 1 A total penalty of $20,000 be imposed on the first respondent for the contraventions referred to in Declarations 1 to 9 set out above. 2 A total penalty of $6,000 be imposed on the first respondent for the contraventions referred to in Declarations 28 to 36 set out above. 3 A total penalty of $6,000 be imposed on the second respondent for the contraventions referred to in Declarations 37 to 45 set out above. 4 A total penalty of $6,000 be imposed on the first respondent for the contraventions referred to in Declarations 46 to 54 set out above. 5 A total penalty of $6,000 be imposed on the second respondent for the contraventions referred to in Declarations 55 to 63 set out above. 6 The penalties are to be paid to the following persons and the Commonwealth Consolidated Revenue Fund in the following amounts by the first respondent paying 72.72727% of those amounts and the second respondent paying 27.27273% of those amounts: 6.1 Rajmund Rajko Lah, $1,646.21; 6.2 Mohamed Abdi, $564.95; 6.3 Aaron Renfrey, $846.39; 6.4 Adam Harding, $408.01; 6.5 Bruno Battaglini, $2,514.42; 6.6 Josip Novakovic, $5,109.52; 6.7 Rodney Bradley, $4,314.40; 6.8 Russell Harding, $3,414.22; and 6.9 the Commonwealth Consolidated Revenue Fund, $25,181.88. 7 Each of the payments provided for in paragraph 6 be made within 28 days of the date on which these orders are made. 8 The application otherwise be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.