Hansen v Mt Martha Community Learning Centre Inc (No 2) [2015] FCA 1283

Hansen v Mt Martha Community Learning Centre Inc (No 2) [2015] FCA 1283

A penalty of $5,000 was appropriate because the first respondent contravened the workplace agreement by failing to pay annual leave loading on termination, had been on notice of the entitlement, and required deterrence, but the contravention was relatively minor, inadvertent, isolated, promptly and voluntarily rectified once realised, committed by a small not-for-profit enterprise with an unblemished record, and did not warrant payment of the penalty to the applicant because she had been paid the loading and was out of pocket only for a relatively short time.

Jurisdiction
Australia
Judgment Date
20 November 2015
Procedural Posture
Industrial Law Proceeding for Contravention of Workplace Agreement / Penalty Determination After Liability Judgment
Outcome
Penalty imposed on the first respondent and ordered to be paid to the Commonwealth of Australia.
Legal Topics
['contravention of Workplace Agreement' 'civil Penalties' 'annual Leave Loading on Termination' 'specific and General Deterrence' 'payment of Penalty']
['industrial Law' 'employment Law'] ['contravention of Workplace Agreement' 'civil Penalties' 'annual Leave Loading on Termination' 'specific and General Deterrence' 'payment of Penalty']

Case Brief

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Procedural Posture

Industrial Law Proceeding for Contravention of Workplace Agreement / Penalty Determination After Liability Judgment

Legal Issues

  1. 1 ['What penalty should be imposed on the first respondent for contravening cll 26.8.2 and 26.8.3 of the Neighbourhood Houses and Learning Centres Workplace Agreement 2007.' "Whether the first respondent's size and financial circumstances were relevant to fixing the penalty." 'Whether the first respondent showed contrition by recognising and rectifying the underpayment.' 'Whether the penalty should be paid to the applicant or to the Commonwealth.']

Ratio Decidendi

A penalty of $5,000 was appropriate because the first respondent contravened the workplace agreement by failing to pay annual leave loading on termination, had been on notice of the entitlement, and required deterrence, but the contravention was relatively minor, inadvertent, isolated, promptly and voluntarily rectified once realised, committed by a small not-for-profit enterprise with an unblemished record, and did not warrant payment of the penalty to the applicant because she had been paid the loading and was out of pocket only for a relatively short time.

Court Disposition

Penalty imposed on the first respondent and ordered to be paid to the Commonwealth of Australia.

Orders

  • ['The first respondent pay a penalty of $5000 in respect of its contravention of item 2(2) of Sch 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) constituted by its contravention of cll 26.8.2 and 26.8.3 of the Neighbourhood Houses and Learning Centres Workplace Agreement...