Industrial Relations Commission New South Wales Medium Neutral Citation: Fire Brigade Employees' Union of New South Wales v Fire and Rescue NSW [2014] NSWIRComm 16 Hearing dates: 15 November 2013 Decision date: 08 April 2014 Jurisdiction: Industrial Court of NSW Before: Walton J, President Decision: The Court makes the following orders: (1) Fire and Rescue NSW shall pay a pecuniary penalty of $4,000 apportioned equally in Matter Numbers IRC 569 to 576 of 2013; (2) The defendant shall pay the prosecutor's costs of the proceedings as agreed or assessed. Catchwords: AWARDS - allegations of contravention - eight summons - alleged breach of requirement imposing maximum hours of work - allegations relate to seven different fire-fighters - practice and procedure for issuing summons - breaches admitted - civil penalty - principles - penalty warranted - nature and quality of contraventions - breaches not deliberate or as a result of indifference - failure to avert further breaches after notice - need for diligence in regulation of employment - model employer - not high range of seriousness - personal and general deterrence - prior contravention - consequences of breaches - steps taken to avoid breach - contrition and remorse - maximum penalty - single course of conduct - injunction - contravention found for each matter - principle of totality - pecuniary penalty imposed - costs - orders Legislation Cited: Industrial Relations Act 1996 Industrial Relations Commission Rules 2009 Cases Cited: Auscare Corporation Pty Ltd v New South Wales Department of Commerce [2007] NSWIRComm 271 Auscare Corporation Pty Ltd v New South Wales Department of Commerce (No 2) [2008] NSWIRComm 124 Ian Robertson v Marrickville City Council [2003] NSWIRComm 394 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Ridge Consolidated Pty Ltd v WorkCover Authority of NSW (Inspector Mauger) [2000] NSWIRComm 151; (2000) 100 IR 56 Yarramul Pty Limited t/as La Porchetta Mulwala and Mulwala Golden Inn Restaurant Pty Limited v Office of Industrial Relations [2007] NSWIRComm 230 Category: Principal judgment Parties: Fire Brigade Employees' Union of New South Wales (Prosecutor) Fire and Rescue NSW (Defendant) Representation: J Nolan of counsel (Prosecutor) R Reitano of counsel (Defendant) Fire Brigade Employees' Union of New South Wales (Prosecutor) Fire and Rescue NSW (Defendant) File Number(s): IRC 569 - 576 of 2013 Judgment 1The Fire Brigade Employees' Union of New South Wales ('the FBEU' or 'the prosecutor') moved the Court to issue eight summonses pursuant to s 165 of the Industrial Relations Act 1996 ('the Act') requiring Fire and Rescue NSW ('FRNSW' or 'the defendant') to appear before the Court to answer charges that on eight occasions in 2012 and 2013 it did, in relation to seven different firefighters, the following: 1) Contravene section 12 of the Industrial Relations Act 1996; and 2) Breach clause 8.11 of the Crown Employees (NSW Fire Brigades Permanent Firefighting Staff) Award 2011 2Section 12 of the Act provides as follows: 12 Persons bound by award (1) An award is binding on all employees and employers to which it relates, whether or not they were a party to the making of the award. (2) An award that applies to a particular industry is, subject to its terms, taken to bind all employees and employers engaged in the industry. (3) An award is, subject to its terms, binding on all industrial organisations that were a party to the making of the award. 3Clause 8.11 of the Crown Employees Fire and Rescue NSW Permanent Firefighting Staff) Award 2011 ('the Award') provides the following: 8.11 No employee shall be permitted to work in excess of sixteen hours straight except in the case of a call to an incident or other emergency circumstances. 4The alleged breach in each case involved a firefighter working in excess of 16 hours straight (not being work concerning a call to an incident or other emergency circumstance). 5The particulars of each alleged breach were as follows: (i) IRC 569 of 2013 - On 5 October 2012, Senior Firefighter Raison was required to wait for a relieving firefighter to be sent to Berowra Fire Station from the City of Sydney Fire Station which relieving firefighter did not arrive until 11.01 am thus causing Senior Firefighter Raison to work in excess of 16 hours. (ii) IRC 570 of 2013 - On 22 January 2013, Station Officer Patrick was required to wait for a relieving firefighter to be sent to Dapto Fire Station from the City of Sydney Fire Station which relieving firefighter did not arrive until 10.15 am, thus causing Station Officer Patrick to work in excess of 16 hours. (iii) IRC 571 of 2013 - On 13 June 2012, Senior Firefighter Jaschke was required to wait for a relieving firefighter to be sent to Belmont Fire Station from the City of Sydney Fire Station which relieving firefighter did not arrive until 10.30 am, thus causing Senior Firefighter Jaschke to work in excess of 16 hours. (iv) IRC 572 of 2013 - On 22 January 2013, Senior Firefighter Hall was required to wait for a relieving firefighter to be sent to Shellharbour Fire Station from the Drummoyne Fire Station which relieving firefighter did not arrive until 10.15 am, thus causing Senior Firefighter Hall to work in excess of 16 hours. (v) IRC 573 of 2013 - On 28 January 2013, Senior Firefighter Wolfe was required to wait for a relieving firefighter to be sent to Shellharbour Hazmat Fire Station from the City of Sydney Fire Station which relieving firefighter did not arrive until 10.10 am, thus causing Senior Firefighter Wolfe to work in excess of 16 hours. (iv) IRC 574 of 2013 - On 12 March 2013, Station Officer Balzer was required to wait for a relieving firefighter to be sent to Shellharbour Fire Station from the City of Sydney Fire Station which relieving firefighter did not arrive until 10.16 am, thus causing Station Officer Balzer to work in excess of 16 hours. (v) IRC 575 of 2013 - On 12 March 2013, Station Officer Patrick was required to wait for a relieving firefighter to be sent to Dapto Fire Station from the City of Sydney Fire Station which relieving firefighter did not arrive until 10.30 am, thus causing Station Officer Patrick to work in excess of 16 hours. (vi) IRC 576 of 2013 - On 22 March 2013, Senior Firefighter Braga was required to wait for a relieving firefighter to be sent to Bulli Fire Station from the City of Sydney Fire Station which relieving firefighter did not arrive until 10.28 am, thus causing Station Officer Braga to work in excess of 16 hours. 6In its applications, the FBEU sought the following two additional orders: 2) In accordance with section 359(1) of the Industrial Relations Act 1996 the granting of an injunction to restrain the said Fire and Rescue NSW from further such contraventions of the said industrial instrument; and 3) In accordance with the (sic) section 357(1) of the Industrial Relations Act 1996 an order awarding the maximum penalty. Summonses issued 7The summonses were issued by the Industrial Registrar on 28 June 2013 and made returnable before the Registrar. The summonses should have been returnable before the Industrial Court: r 17.2 of the Industrial Relations Commission Rules 2009. The defendant, nevertheless, appeared before the Court and answered the charges. 8This matter was raised with the parties and submissions were made regarding it. I am satisfied that the proceedings were validly instituted and what occurred was an irregularity within the meaning of s 170(3) of the Act and did not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings: Ridge Consolidated Pty Ltd v WorkCover Authority of NSW (Inspector Mauger) [2000] NSWIRComm 151; (2000) 100 IR 56 at [32] - [38]. The parties agreed this was so. Breaches admitted 9The evidence regarding the alleged breaches was contained in the affidavits of Darin Sullivan, President of the FBEU and Jim Casey, State Secretary of the FBEU. The defendant admitted the breaches. The admissions were made in the affidavit of Craig Anthony Wright, Acting Zone Commander (A/ZC) Metropolitan East 1. In that respect, Superintendent Wright stated as follows: 13. I have gained the following information in relation to Matter No. IRC 569 of 2013. QF Clarkson from City of Sydney (COS) C Platoon was used to relieve SF Raison at Berowra Fire Station on 5 October 2012. To the best of QF Clarkson's memory, he believes it was one of the occasions where he used a taxi for transport to the out duty and had to wait an extraordinary amount of time for the taxi to arrive. In relation to the Award, the provision of a taxi for transport is provided for in subclause 12.12.1. 14. I have gained the following information in relation to Matter No. IRC 570 of 2013. On 22 January 2013, SO Turnbull was directed at 8.00am to report from City of Sydney to Dapto Fire Station. This was a journey of 97 kilometres and SO Turnbull did not arrive until 10.15am. SO Turnbull's reason for late arrival, was that there was a considerable traffic delay around Sydney Airport and further delays caused by road works on the freeway past Wollongong. 15. I have gained the following information in relation to Matter No. IRC 571 of 2013. SF May from City of Sydney D Platoon was used to relieve SF Jaschke at Belmont Fire Station on 13 June 2012. SF May was late in arriving due to heavy traffic and that he did not leave COS until after roll call at 8.00am to make sure that the outduty was required. SF May called the Station Officer at 9.30am to inform him that he would arrive after 10.00am. 16. I have gained the following information in relation to Matter No. IRC 572 of 2013. QF Murdoch from Drummoyne A Platoon was used to relieve SF Hall at Shell Harbour Fire Station on 22 January 2013. The Occurrence Book of Drummoyne indicates that QF Murdoch commenced travel at 0800 hours, being the correct time, but that QF Murdoch remembers the traffic throughout the whole trip was the worst he had seen commencing on Victoria Road all the way through to Shell Harbour. QF Murdoch used his own private vehicle for this journey. 17. I have gained the following information in relation to Matter No. IRC 573 of 2013. SF Handcock from 13 Alexandria HAZMAT B Platoon was used to relieve SF Wolfe at Shell Harbour HAZMAT Fire Station on the 28 January 2013. The Occurrence Book of Alexandria Station (attached to this affidavit and marked B) indicates the pumper from Alexandria Fire Station was called to an incident at 0749 hours and did not return until 0814 hours. SF Handcock believed he needed to wait until the pumper had returned to the station before travelling to Shell Harbour HAZMAT. SF Handcock was acting appropriately by remaining at Alexandria Fire Station as he had to ascertain whether the Heavy HAZMAT appliance was required anywhere in the GSA. In order to allow SF Handcock to travel and relieve at Shell Harbour, SF Mason from COS arrived to relieve at Alexandria Fire Station. However, SF Mason was not qualified to be able to respond in a Heavy HAZMAT appliance, so this meant SF Handcock had to wait for the return of the pumper because one of the Fire Fighters on the pumper at the incident would be qualified to respond in a Heavy HAZMAT appliance for the rest of the shift and SF Mason would cover that Fire Fighter's position. Therefore, SF Handcock left Alexandria Fire Station later than 0800 hours. 18. I have gained the following information in relation to Matter No. IRC 574 of 2013. LF Raftery from COS D Platoon was relieved by RF Hardy from Matraville at 0845 hours on 12 March 2013. LF Raftery then immediately departed COS to arrive at Shell Harbour Fire Station at 1015 hours. I believe under the circumstances of leap frogging reliefs, this was the earliest that LF Raftery was able to arrive at Shell Harbour Fire Station for duty. Consistent with the principles used and outlined in paragraph 10 (b), LF Raftery lives at Cronulla which is in the south of the GSA and on this occasion would be relieving South of the GSA. Additionally, on this occasion, LF Raftery was to act up as an SO. This would provide him with good learning skills in that rank and in a different environment to that in which he normally operates within. LF Raftery also rang the SO at Shell Harbour as he drove through Waterfall to advise that SO that he would be slightly late in arriving at Shell Harbour Fire Station. 19. I have gained the following information in relation to Matter No. IRC 575 of 2013. SF Wilde was sent from Randwick Fire Station to Wollongong Fire Station and LF Ingle was sent from Wollongong Fire Station to Dapto Fire Station to act up as the SO on 12 March 2013. This is what is termed "leap frogging" and is used in circumstances where the original excess Firefighter is not able to carry out the shortage due to qualifications or rank. Also, consistent with the principles outlined in paragraph 10 (b) which are to utilise a Firefighter who resides geographically closer to the station which requires the relief. In this case Wollongong is closer to Dapto than Randwick. 20. I have gained the following information in relation to Matter No. IRC 576 of 2013. SF Leslie arrived at COS Fire Station from Leichhardt Fire Station at 0850 hours to release QF Sharman to travel to Bulli Fire Station on 22 March 2013. Prior to SF Leslie arriving at COS Fire Station from Leichhardt Fire Station, QF Sharman was required to respond in an appliance to a fire call at 0843 hours and did not return to COS Fire Station until 0907 hours. QF Sharman then immediately left to go to Bulli Fire Station. Consistent with the principles used and outlined in paragraph 10 (b), I made the following decision, as QF Sharman lives at Bulli and has a young child, it would be of assistance to the Fire Fighter to perform the relief at Bulli Fire Station on 22 March 2013. It was also my decision that it would be inconvenient if SF Leslie had been sent to Bulli Fire Station from Leichhardt as he lives on Scotland Island on the Hawkesbury River. Other evidence 10In addition to the affidavits referred to above, there were three further affidavits filed in the defendant's case. The first was that of James Stuart Hamilton, formerly the defendant's Director of Metropolitan Operations. Deputy Commissioner Hamilton explained the defendant's processes for filling vacancies due to planned and unplanned absences and the remedial steps taken by the defendant upon learning Senior Firefighter Jaschke had worked in excess of 16 hours whilst waiting for relief to arrive at Belmont Fire Station and, similarly, when two firefighters had worked in excess of 16 hours in the Illawarra in January 2013. Those steps involved the issuing of instructions to prevent further personnel working in excess of 16 hours. 11Deputy Commissioner Hamilton also deposed as follows: 30. I have spoken with Commissioner Gregory Mullins AFSM and Deputy Commissioner James Smith AFSM regarding deployment of relieving firefighters, particularly to the Illawarra and Newcastle Fire Districts. In these conversations it was clear it was never the intention of FRNSW to breach the Award and that with remedial action being put into place it will negate any future possible breaches. 31. I have been informed that a check was made on Friday 27 September 2013 of the overtime payments made to the firefighters listed in Matter Nos. IRC 569 - 576 of 2013. This found all were paid correctly with the exception of SF Braga who had been paid only 15 minutes out of the two and half hours worked on 22 March 2013. This was immediately corrected with SF Braga being paid 2 hours and 15 minutes overtime on Friday 27 September 2013 for work carried out on 22 March 2013. 12It appears that instructions regarding the working of 16 hour shifts were not disseminated to all commands and there were further instances of firefighters working in excess of 16 hours. In a second affidavit, Deputy Commissioner Hamilton stated that the Commissioner of FRNSW had instructed him to issue guidelines on working 16 hour shifts throughout the defendant's operations and that he had complied with those instructions. 13Commissioner Mullins also made an affidavit in the defendant's case. The Commissioner stated as follows: 4. On 10 July 2012, I received correspondence from the State Secretary of the Fire Brigade Employees' Union of New South Wales (FBEU) in relation to a permanent firefighter working a shift in excess of 16 hours at Belmont Fire Station on 13 June 2012... 5. On receiving advice that under the circumstances this constituted a breach of sub-clause 8.11 of the Crown Employees (Fire And Rescue NSW Permanent Firefighting Staff) Award 2011, I had clear guidelines issued in the Metropolitan North Area Command in relation to procedures to be followed to avoid a repeat incident in that Area.... 6. On 6 August 2012, I wrote back to the State Secretary of the FBEU in response to his letter of 10 July 2012 outlining my actions and how seriously I considered the matter.... 7. I have been advised that after the incident at Belmont (Metropolitan North) on 13 June 2012, further incidents occurred at Berowra (Metropolitan East), Dapto, Shellharbour and Bulli Fire Stations (Metropolitan South). 8. Taking into account that this situation is untenable, and that there has not been a repeat incident in Metropolitan North since the issuing of the guidelines on 31 July 2012, I have requested the Deputy Commissioner to issue the guidelines throughout the organisation. 9. The guidelines clearly require that firefighters are released from duty at the 16 hour mark and that other appropriate arrangements are organised. 10. On behalf of FRNSW, its management, firefighters and employees, I am remorseful and unreservedly apologise for the breaches of the Crown Employees (NSW Permanent Firefighting Staff) Award 2011 and the Industrial Relations Act 1996 by the working of firefighters over 16 hours. As I stated... "the conditions in the award are not arbitrary and must be complied with". Consideration 14Section 357 of the Act provides for a civil penalty to be imposed for the breach of an industrial instrument. That section is in the following terms: 357 Civil penalty for breach of industrial instruments (1) If an industrial court is satisfied that a person has contravened a provision of an industrial instrument, it may order the person to pay a pecuniary penalty not exceeding $10,000 (a civil penalty). Note. Section 21 of the Interpretation Act 1987 provides that the expression "contravene" in an Act includes a failure to comply. (2) Proceedings for a civil penalty may be instituted: (a) by an inspector or any other person authorised by this Act to institute proceedings for offences, or (b) by an employer bound by the industrial instrument concerned, or (c) by an industrial organisation concerned in the industry to which the proceedings relate. (3) Proceedings for a civil penalty may be instituted within 6 years after the contravention. (4) To avoid doubt, the rules of evidence apply to proceedings for a civil penalty. (5) Evidence given in proceedings for the recovery of money under Part 2 is not admissible in proceedings for a civil penalty. (6) In any proceedings for a civil penalty, the industrial court may award costs to either party and assess the amount of those costs. Costs cannot be awarded against the prosecutor except in the circumstances in which costs can be awarded against the prosecutor in criminal proceedings. (7) The following provisions apply to contraventions of industrial instruments and to proceedings for a civil penalty for such a contravention in the same way as they apply to criminal proceedings for an offence against this Act: (a) Sections 400-403. (b) The provisions of any Act relating to the recovery of penalties imposed for an offence. (c) Any provision of this or any other Act relating to criminal proceedings that is applied to this section by the regulations (whether with or without modification). 15As the defendant submitted, the Industrial Court has previously considered principles relevant to the determination of penalty (and whether any penalty should be imposed) in the case of breaches of industrial instruments, most recently in Auscare Corporation Pty Ltd v New South Wales Department of Commerce [2007] NSWIRComm 271 ('Auscare (No 1)') and in Auscare Corporation Pty Ltd v New South Wales Department of Commerce (No 2) [2008] NSWIRComm 124 ('Auscare (No 2)'). 16The majority in Auscare (No 1) made the following relevant observations, at [12] - [16]: [12] Principles applicable to the imposition of civil penalties in the case of prosecutions for breaches of awards (see s 357 of the Act) were recently considered by the Full Bench of the Court in Yarramul Pty Limited t/as La Porchetta Mulwala and Mulwala Golden Inn Restaurant Pty Limited v Office of Industrial Relations [2007] NSWIRComm 230. These principles bear upon the questions raised in this matter. [13] The relevant principles enunciated by the Full Bench were as follows: [19] We agree that breaches of industrial instruments are serious matters and, in that respect, we concur with the view expressed by Marks J in Transport Workers' Union v Carey's Warehousing & Distribution Pty Limited and others [2006] NSWIRComm 192 at [15] as follows: [15] The starting point for the assessment of an appropriate penalty is a consideration of the objective seriousness of the offences with which the defendants are charged. The prosecutor submitted, and I accept, that the failure to comply with the provisions of an industrial instrument is a serious matter. Industrial instruments are designed to provide for minimum rates of pay and working conditions for employees. They are established through mechanisms created by government and are intended to have, and do have, the force of law in terms of their application and the enforcement of duties and obligations imposed by them. [16] ...The underpayment of any wages will always be a serious matter, particularly from the perspective of an employee. [20] We would add, however, that the seriousness attaching to breaches of industrial instruments also relates to the important public purpose such instruments serve by the creation of an orderly system of employment regulation, including the establishment, by force of law, of minimum entitlements for employees (as assessed by the Industrial Relations Commission of New South Wales). We also observe in relation to the above matters, his Honour found that not only were the obligations in the relevant award clear and unambiguous, but there was 'evidence of a systematic refusal to pay overtime, for time worked on Saturdays at the rate provided for in the Award, being double time and annual leave loadings.' [21] There is no evidence in the matters before us that there was any systematic refusal to pay the employees concerned in any relevant respect. Without more than passing consideration to the distinction between the Club Award and the Restaurants Award, for the purposes of these proceedings we accept that the reliance on the Restaurants Award was done in good faith (although we note that this observation does not detract from the requirement for strict adherence to the terms of such instruments). [22] Marks J also considered breaches of industrial instruments in Transport Workers' Union of New South Wales v Contract Courier Services Pty Ltd [2007] NSWIRComm 152 and in particular at [20] when he said, in words that we would endorse: [20] I commence by observing that industrial instruments serve an important and integral part in the orderly regulation of relationships between employers and employees and principals and independent contractors. They have the force of law and sanctions are imposed for breach. ... [23] In endorsing his Honour's observations as to the importance of, and integral part, industrial instruments play in the relationship between employers and employees, we would also observe, in relation to the matters before us, there is no evidence, as was the case before his Honour, that 'the conduct of the defendant cannot be characterised as something that was unintended'. As earlier indicated, the breaches of the industrial instruments arising under s 357 of the Act arose as a result of an honest belief as to the relevant award applying. [24] Overall, in relation to the breaches arising under s 357 of the Act, we are of the view that, given the facts and circumstances, they are at the lower end of the scale of objective seriousness. [14] The Full Bench imposed penalties of $6,000 and $3,500 respectively for the breaches of the award in that matter. [15] As a matter of general principle, a court will be disinclined to impose no penalty where breaches of the Act or industrial instruments have been found. Whilst made in the context of proceedings brought before the Federal Court of Australia seeking a declaration that there had been a breach of the Workplace Relations Act 1996 (as to right of entry provision, which depended for its operation, upon a declaration as to the operation of a particular award) and the imposition of a penalty, we consider the following observations of Wilcox J in Community Public Sector Union & Anor v Stellar Call Centres Pty Ltd (1999) 92 IR 224 at [57] to be apposite in the present context: Upon proof of a breach of the Act it is ordinarily appropriate to impose a penalty, even if only a nominal one, in order to mark the Court's disapproval of the breach. [16] That principle will apply with even greater force in the present case. Given the principles stated in Yarramul and the significant public interest in ensuring compliance with awards, it appears to us that it will be only exceptional cases which would attract no penalty where breaches of an award are proven. 17In Auscare (No 2) I referred to a number of other authorities that had dealt with the principles to be applied in imposing a civil penalty. At [8] - [14], the Court observed as follows: [8] A corollary of these observations is that the imposition of a penalty under s 357 of the Act must recognise the need for deterrence, both personal and general. This is not to incorporate into the factors to be taken into account in assessing a civil penalty the principles of sentencing in the criminal law (although I leave this question open), but rather to recognise that civil penalties serve a role in enhancing social welfare by minimising the net social cost of wrongdoing and to fix a price on the contravention that is sufficient to deter repetition by the contravenor: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) and Others (2007) 161 FCR 513 at [60]. In the context of the system of awards maintained under the Act, deterrence not only serves the function of ensuring that the terms of awards are complied with, but maintains the integrity of the industrial system itself which depends, in large measure, upon such instruments. [9] Deterrence has been recognised as a feature of the fixing of civil penalties by a Full Bench of this Commission in an analogous area (the contravention of dispute orders made under s 139 of the Act): Bluescope Steel Ltd (formerly BHP Steel Ltd) v Australian Workers' Union, New South Wales Branch (No 2) (2005) 141 IR 329 at [4] and in relevantly analogous proceeding under the Workplace Relations Act 1996 in decisions of the Federal Court of Australia: Commonwealth Bank of Australia and Another v Finance Sector Union of Australia (2007) 157 FCR 329 at [181] (and the authorities referred to therein) and Ponzio v B & P Caelli Constructions Pty Ltd and Others (2007) 158 FCR 543 at [93]. The extent to which deterrence may feature in any penalty will, in the case of personal deterrence, depend on an assessment being made as to the risk of re-offending and, in the case of general deterrence, an assessment being made as to the extent to which the penalty will act to a deterrent to others in the community who might be likely to offend. [10] These considerations do not detract from what Schmidt J referred to in her draft judgment as the need, in assessing an appropriate penalty, to have regard to the nature and quality of the offence. In ACCC v Dataline.Net.Au Pty Ltd, the Full Bench of the Federal Court observed (at [60]), in the context of an appeal in proceedings concerning the imposition of a pecuniary penalty for a contravention of the Trade Practices Act 1974 that "the character of the contravention must be the central determination of the penalty taking into account any ameliorating circumstances". That principle is applicable to penalty proceedings under s 357 of the Act. [11] Without derogating from the width of these general principles, a consideration of the authorities (in a variety of legislative contexts) concerning civil penalties offers some guidance as some particular matters that may be taken into account in determining whether proscribed conduct calls for the imposition of a penalty, and if it does, the amount of penalty. [12] In Bluescope Steel (AIS) Ltd v Australian Workers' Union and Anor (No 2) [2005] NSWIRComm 210 at [36] and [37], Boland J adopted the factors identified by Branson J in Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 (the same factors were adopted by Branson J in Commonwealth Bank at [181]) to distill the following factors as being appropriate to take account of in proceedings for a civil penalty under s 139 of the Act (at [37]): (a) The circumstances in which the relevant contravention took place (including whether the contravention was undertaken in deliberate defiance or disregard of the dispute order); (b) Whether the person found to have been in contravention of a dispute order has previously been found to have engaged in conduct in contravention of an earlier dispute order (in this respect see s 139(4)(b), which provides for higher maximum penalties where there has been an earlier contravention); (c) The consequences of the conduct found to be in contravention of the dispute order; (d) The need, in the circumstances, for deterrence; (e) Any relevant subjective factors including undertakings regarding future conduct. [13] In relation to mitigating factors, I note that Jessup J in Ponzio considered the following factors to be "conventional" in assessing a civil penalty (in that matter his Honour was considering an appeal from a judgment in which applications for orders under s 187 AD of the Workplace Relations Act 1996 has been dismissed) (at [138]): the first respondent co-operated with the appellant; the first respondent had not been involved in any prior contravention of relevant provisions of the Act; the first respondent had reviewed its strike pay procedure, and was aware that claims for lost time for health and safety reasons had to be scrutinised carefully; the payments in the present case were made under significant pressure from the other respondents; since August 2003, the first respondent had resisted making payments in contravention of s 187AA of the Act (on four separate occasions to which his Honour referred); the fact and conduct of the legal proceeding itself had been costly to the first respondent. [14] The first to third and sixth factors (with modification for the present context) are applicable to the present proceedings for a civil penalty. 18I should also refer to the judgment of Peterson J in Ian Robertson v Marrickville City Council [2003] NSWIRComm 394. In that case the defendant was charged with 10 individual offences under s 357 to which it pleaded guilty. Peterson J observed, at [32], that the breaches arose out of a single course of conduct. His Honour stated as follows, at [33]: Section 357 does not provide that multiple breaches may be treated as a single breach, where they arise out of a course of conduct. However, if one were to apply the totality principle applicable in criminal proceedings, a course submitted by the parties to be applicable here, then a result not too far removed from a single breach approach would be achieved. I will apply totality. 19In my opinion, having regard to the foregoing authorities and the particular factual circumstances of these proceedings, the relevant considerations in fixing a penalty are as follows: (1)Breaches of industrial instruments are serious matters; (2)A court will be disinclined to impose no penalty where breaches of the Act or industrial instruments have been found. Only exceptional cases that would attract no penalty where breaches of an award were proven; (3)The starting point for the assessment of an appropriate penalty is a consideration of the objective seriousness of the offence with which the defendant is charged. This includes a consideration of whether the breach was deliberate or the result of recklessness or indifference in applying the Award; (4)The imposition of a penalty under s 357 of the Act must recognise the need for deterrence, both personal and general; (5)Whether the defendant had been involved in any prior contravention of s 357 of the Act; (6)The consequences of the conduct found to be in breach of the industrial instrument; (7)Steps taken by the defendant to avoid a repeat of the breach; (8)Contrition and remorse including whether the defendant made reparation for any loss caused by the breach; (9)If the breach was admitted or the prosecution was put to proof; (10)Any other relevant subjective factors including undertakings regarding future conduct; (11)The maximum penalty; and (12)Whether multiple breaches should be treated as arising out of a single course of conduct. No penalty? 20In Auscare (No 1) (at [12] - [13]) the majority accepted the principle enunciated by the Full Bench in Yarramul Pty Limited t/as La Porchetta Mulwala and Mulwala Golden Inn Restaurant Pty Limited v Office of Industrial Relations [2007] NSWIRComm 230 at [19] that "the failure to comply with the provisions of an industrial instrument is a serious matter" and only exceptional cases that may attract no penalty where breaches of an award are proven. It is apparent that the defendant did not see these proceedings as an exceptional case that should attract no penalty and, instead, submitted a penalty at the low end of the range was appropriate. The prosecutor, on the other hand, contended for "a significant penalty". 21In my opinion, this is not an exceptional case and a penalty is necessary and appropriate having regard to the considerations that follow. Nature and quality of the contravention 22The prosecutor submitted that, whereas the breaches were not 'deliberate', they could be characterised as the product of "a failure to systematise adherence to the award". Counsel submitted that a succession of the FBEU notices or newsletters (referred to as "Sitreps") drew attention to the breaches as they were occurring, yet breaches continued to occur. 23The FBEU submitted, as follows, that there appeared to be no satisfactory explanation for the breaches: An agency of the size and significance of FRNSW cannot... fall back upon excuses, the kind of which might be expected from small business or relatively unsophisticated employers. 24Counsel noted that, in August 2012, the defendant's Commissioner took action "in order that all staff in the Zone in which the incident occurred are fully aware that the conditions in the Award are not arbitrary and must be complied with." The Commissioner issued this warning after the incident concerning Senior Firefighter Jaschke, which occurred on 13 June 2012. The FBEU wrote to FRNSW on 10 July 2012 regarding Jaschke. It followed, counsel submitted, "that the agency was on notice at least on and from that date - and at the highest level." 25It was further submitted that practical steps could and should have been taken to avoid the breaches, including realistic estimates of travel times, traffic, etc. In all the circumstances, counsel asserted, there was no real excuse for this casual approach. Nor was there any excuse for the failure to 'roll out' the Commissioner's memo to the entire service rather than simply the zone where the breaches occurred. 26Counsel for the prosecutor submitted the following: The size and significance of FRNSW, its public sector status and its duty, therefore to act as a model employer together with the facts and circumstances recounted here, combine to support the contention that a significant penalty - at the upper range must be imposed upon FRNSW. 27Counsel for the defendant submitted the context of the contraventions was relevant - notably that FRNSW employed something in the order of 3500 employees and, over a period of about 9 months, 8 contraventions had been disclosed, 4 of which involved permitting employees to work less than 15 minutes in excess of the maximum permitted consecutive hours referred to in the Award. It was submitted, as follows, that: The sheer number of employees involved in FRNSW operations suggests that the breaches do not have the character of deliberateness and nor could they, contrary to the prosecutors submission, be seen to have the character of systemic failings. The mathematical enormity of the number of employees and the number of shifts worked in that period is reasonably obvious. 28Counsel for FRNSW contended the prosecutor's submission about the FBEU newsletters was inappropriate and, in any event, misplaced. Further, the characterisation of the newsletters as being 'notice' to FRNSW "of anything" was simply wrong. Counsel accepted it was true that the instances relied upon occurred after Commissioner Mullins' letter of 16 August 2012, but submitted, relevantly, as follows: [T]he promise in that letter was to engage in a process of monitoring of the initiatives put in place to ensure conformity with the Award provisions. Relevantly over that period there was process of reminding managers and others of the Award provision and the means by which it was to be complied with. The breaches simply do not have the necessary colour of deliberateness and involve as they largely do inadvertence largely because of a failure to deal with exigencies that were not expected to arise (traffic delays, waiting for taxi's and time estimates gone wrong). The suggestion that the breaches were deliberate and systemic should be rejected. The objective seriousness of the offence and the nature and seriousness of the offence do not tell of an offence falling at the high end of seriousness having regard to the particular circumstances disclosed in the evidence. 29Contrary to the defendant's submission, it was not the prosecutor's case that the defendant had deliberately breached the Award. The prosecutor's position was that of systemic failure to observe the Award. 30What occurred was that, in August 2012, Commissioner Mullins responded to a concern of Mr Casey that, in June 2012, Senior Firefighter Jaschke worked in excess of 16 hours in contravention of cl 8.11 of the Award. Commissioner Mullins accepted the breach had occurred and advised Mr Casey it was unintentional and that "action has been taken in order that all staff in the Zone in which the incident occurred are fully aware that the conditions in the award are not arbitrary and must be complied with." The "Zone" referred to was Metropolitan North Area Command. 31Deputy Commissioner Hamilton confirmed that, on 31 July 2012, all Duty and Station Commanders within the Zone were advised of the "processes to implement to prevent further personnel working in excess of 16 hours. " 32After the incident involving Senior Firefighter Jaschke, a further seven incidents involving six firefighters occurred at Berowra on 5 October 2012 (Metropolitan East Zone) and at Dapto, Shellharbour and Bulli in January and March 2013 (Metropolitan South Zone). 33Deputy Commissioner Hamilton indicated the following in his affidavit of 30 September 2013 that: On 22 January 2013 I was advised by Area Commander Metropolitan South, Chief Superintendent Gerry Byrne Area Commander that two firefighters had worked in excess of 16 hours in Metropolitan South 1 (MS1, Illawarra). I was informed that remedial action had been implemented reminding MS1 Duty Commanders to ensure the 16 hour provisions are maintained and if required implement strategies such as ensuring the provisions of In Order 2009/4 and consideration of traffic congestion, particularly when leap frogging arrangements are incorporated in the movement of personnel. 34In his affidavit sworn on 5 December 2013, Deputy Commissioner Hamilton indicated that he had instructed the Director Metropolitan Operations and Director Regional Operations to disseminate the guidelines regarding the working of 16 hour shifts throughout their respective commands. The Deputy Commissioner did not say when the instruction was issued and no documentation to that effect was in evidence. 35As I earlier noted, breaches of industrial instruments are serious matters. Commissioner Mullins implicitly acknowledged this was so in his letter to Mr Casey of 6 August 2012 and steps were actively taken to avoid a repeat of the breach. However, those steps were confined to the Metropolitan North Area Command and nothing was done at that stage to alert - or, more accurately, remind - the other Commands that the Award provided that no employee shall be permitted to work in excess of 16 hours straight except in the case of a call to an incident or other emergency circumstances. 36Consequently, the further breaches earlier identified occurred in October 2012 and January and March 2013 in the Metropolitan East and Metropolitan South Zones. 37The breaches were not deliberate or the result of indifference; it would be wrong to find the defendant did not take seriously its obligations to comply with industrial instruments binding on it. The failure to take steps to ensure there was no repeat of the 'Jaschke breach' by alerting or reminding, in a timely way, the relevant managers across the whole of the defendant's operations as to obligations under the Award, appears to have occurred through inadvertence or thoughtlessness or a tacitly held view it was not necessary to disseminate advice across the whole agency. Nevertheless, the defendant is a high profile, public sector agency and the expectation is that it will, at all times, act as a model employer and be diligent in ensuring compliance with its legal obligations towards employees. That it was made aware of an award breach should have immediately triggered a process throughout the defendant's operations aimed at ensuring no further breaches occurred. 38I conclude that the nature and quality of the offence does not place it in the high range of seriousness. Deterrence 39As earlier noted, the extent to which deterrence may feature in any penalty will, in the case of personal deterrence, depend on an assessment being made as to the risk of re-offending and, in the case of general deterrence, an assessment being made as to the extent to which the penalty will act as a deterrent to others in the community who might be likely to offend. 40In respect of personal deterrence, I consider the risk of the defendant re-offending is very low. It is apparent the defendant takes seriously its obligations under the Award and has taken steps to ensure there is no repeat of the breaches that are the subject of these proceedings. 41Nevertheless, I will include an element in the penalty for personal deterrence to remind the defendant of the need for constant attention to be paid to award obligations. In that respect, because of the complex working hours' arrangements that are required in the defendant's operations, there may be some value in the defendant reviewing those arrangements and identifying areas where there is a risk of an award breach through misunderstanding or inadvertence. A briefing of relevant managers could follow up such a review. 42In relation to general deterrence it is appropriate that the penalty is fixed at such a level that it acts as a deterrent to other potential offenders. Prior contravention 43The prosecutor referred to a decision of Chief Industrial Magistrate Miller on 18 March 1994 in which it was claimed the defendant's predecessor, NSW Fire Brigades, was charged with the breach of an award provision in similar terms to cl 8.11 where a firefighter was directed to work in excess of 16 hours. Apparently, no conviction was recorded because the Chief Industrial Magistrate regarded the breach as an isolated incident and because his Honour was "confident" the defendant would address the issue. 44The Court has not been provided with a copy of the decision. However, the prosecutor did not appear to place much reliance on it in any event and accepted that no penalty was imposed in what was a breach which occurred some 20 years ago (with no breaches having occurred in the intervening period). 45Section 357 does not provide for a higher penalty where there has been a second or subsequent contravention. The existence of a prior contravention is a matter, therefore, to be taken into account in the exercise of the Court's discretion. Given the unenthusiastic reliance on the prior breach by the prosecutor, the absence of a copy of the decision, the absence of any prior conviction and the fact the breach occurred 20 years ago with no other intervening breaches recorded, I propose to treat the prior beach as a factor only having a mild significance in fixing a penalty. Consequences of the breaches 46Apart from the inconvenience caused to the firefighters and the strain involved in having to work 16 hours only to find they had to work beyond 16 hours (albeit for periods ranging from only 10 minutes to an hour and one minute), the prosecutor accepted no sustained monetary loss was suffered by the firefighters concerned. Once the breaches were brought to the attention of the defendant, any monies in the nature of overtime payments were paid. Steps taken to avoid a repeat breach 47I have already described the steps taken by the defendant to avoid a recurrence of the breach, namely by reminding relevant commanders of their obligations and the processes available to ensure firefighters did not work in excess of 16 hours. Those steps appear to have been effective. Contrition and remorse 48In his affidavit, Commissioner Mullins expressed remorse and offered an unreserved apology for the breaches. It is clear that the Commissioner takes the defendant's award obligations seriously. Admission of breaches 49The defendant readily admitted the breaches had occurred. The admissions avoided the need for the prosecutor to be put to proof, thus saving time and expense. Maximum penalty 50The maximum penalty provided by s 357 is $10,000. The maximum is relevant "because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick": Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [31]. Whilst Markarian concerned sentencing in criminal proceedings, it seems to me the principles enunciated there in relation to the importance of maximum penalties applies equally to any consideration of a civil penalty. Single course of conduct 51It was agreed between the parties that the approach of Peterson J in Robertson of treating multiple breaches as a single course of conduct was appropriate in these proceedings. I concur: the breaches may be seen as arising out of a single course of conduct having regard, however, to the fact that the defendant had initially been advised of a breach but failed in a timely way to prevent further breaches. Injunction 52The prosecutor in its applications had sought an injunction to restrain the defendant from further contraventions of the Award. I do not regard such an injunction as at all necessary or appropriate. In any event, no submissions were made in support of an injunction. Conclusion 53I am satisfied that Fire and Rescue NSW contravened cl 8.11 of the Award with respect to each of the eight matters before the Court and make a finding accordingly. 54The parties agreed that, in assessing penalty, I should follow Robertson. Having regard to their concurrence, I will adopt that approach but note that I do so only because the resultant pecuniary penalty would not differ from the application of the principle of totality as applied in Auscare (No 2) (see [34] of that decision). 55Taking into account the objective and subjective considerations in this matter, I would assess a pecuniary penalty in the sum of $4,000 which should be apportioned equally with respect to each matter. 56I will further order that the defendant pay the prosecutor's costs as agreed or, in the absence of agreement, as assessed. Orders 57The Court makes the following orders: (1)Fire and Rescue NSW shall pay a pecuniary penalty of $4,000 apportioned equally in Matter Numbers IRC 569 to 576 of 2013; (2)The defendant shall pay the prosecutor's costs of the proceedings as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 April 2014