Hanssen Pty Ltd v Jones [2009] FCA 192

FEDERAL COURT OF AUSTRALIA

Hanssen Pty Ltd v Jones [2009] FCA 192

INDUSTRIAL LAW – appeal from penalty imposed by Federal Magistrate – appellant's employees were holders of Subclass 457 work visas issued under the Migration Act 1958 (Cth) – whether the appellant exploited the vulnerability of the employees – whether the appellant engaged in deliberate contraventions of the Workplace Relations Act 1996 (Cth) Workplace Relations Act 1996 (Cth) ss 341, 337, 337(1), 337(2), 337(8), 337(9), 340(1), 341 Australian Ophthalmic Supplies Pty Ltd v McAlary‑Smith (2008) 165 FCR 560 Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 HANSSEN PTY LTD v ANDREW MARK JONES

WAD 61 of 2008

SIOPIS J

4 march 2009

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 61 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: HANSSEN PTY LTD

Appellant

AND: ANDREW MARK JONES

Respondent

JUDGE: SIOPIS J

DATE OF ORDER: 4 march 2009

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The appeal is allowed. 2. The orders numbered 1, 3 and 4 made by the Federal Magistrate on 11 March 2008 are set aside. 3. The appellant is to pay in respect of the contraventions of s 341 and s 337 of the Workplaces Relations Act 1996 (Cth) a total penalty of $85,000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 61 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: HANSSEN PTY LTD

Appellant

AND: ANDREW MARK JONES

Respondent

JUDGE: SIOPIS J

DATE: 4 march 2009

PLACE: PERTH

REASONS FOR JUDGMENT 1 The appellant is a Perth based construction company which carries on business building high rise apartments. Its sole director and secretary is Mr Gerardus Peter Hanssen. In 2006, the company employed approximately 20 persons, the majority of whom were foreign nationals holding a Subclass 457 work visa (a 457 visa). These employees worked as tradesmen. 2 In 2006, the appellant entered into an employment agreement, known under the Workplace Relations Act 1996 (Cth) (the Act) as an Australian Workplace Agreement (AWA), with each of a number of its employees who held a 457 visa. Later each of the AWAs was lodged with the Office of the Employment Advocate. This case is about the way in which those agreements were entered into and lodged. 3 By an application dated 12 September 2007, filed in the Federal Magistrates Court, the respondent, who is a workplace inspector appointed pursuant to s 167 of the Act, alleged that the appellant had contravened s 341 of the Act in respect of the AWAs entered into with 10 of these employees; and that the appellant had contravened s 337(1) and s 337(8) as well as s 337(2) and s 337(9) in respect of the AWAs entered into with another five of these employees. It was also alleged that the appellant had contravened s 342 of the Act by failing to lodge an approved AWA entered into with an employee, Mr Salazar, within 14 days of approval. 4 The respondent alleged that the contraventions of s 341 of the Act comprised the appellant lodging nine AWAs, each of which contained a date which did not reflect the date on which the employee had signed the AWA, and an AWA which did not contain any date reflecting the date of signature by the employee. 5 The respondent also alleged that the appellant had failed to take reasonable steps to ensure that each of the five different employees had had ready access to his AWA during the seven‑day period beginning seven days before the AWA was approved and so had contravened s 337(1) and s 337(8) of the Act. As to the contraventions of s 337(2) and s 337(9), the respondent alleged that the appellant had not taken reasonable steps to provide the five employees with an information statement containing information as to the contents of the proposed terms of the AWA at least seven days before the date of the approval of the AWA. 6 The respondent claimed declarations that the appellant had contravened the Act in the manner referred to above, and that the appellant should pay a civil penalty in respect of the contraventions. 7 At the first directions hearing on 15 October 2007, the appellant admitted the contraventions alleged and consented to the making of declarations. The Federal Magistrate, accordingly, made the declarations sought by the respondent. 8 The only issue before the Federal Magistrate at the hearing on 5 November 2007 was the penalty to be imposed in respect of the contraventions of the Act which the appellant had admitted. The Federal Magistrate imposed a penalty totalling $173,250 in respect of the contraventions of s 337 and s 341 referred to above. The appellant has appealed against this penalty. The Federal Magistrate also imposed a penalty of $750 in respect of the contravention of s 342 of the Act, but no appeal is brought against the imposition of that penalty.