Employer PABO non-compliance not deliberate but still attracts $45,000 fine

On 30 April 2024 Judge Bromwich of the Federal Court handed down the decision in Transport Workers’ Union of Australia v Cleanaway Operations Pty Ltd [2024] FCA 443, imposing a $45,000 civil penalty on an Employer that failed to supply employee information to the appointed PABO agent within the time specified in the Orders. 

The parties to the proceedings had agreed to specific facts and proposed penalty, as follows:

Timing of the PABOs: The two PABOs required Cleanaway to provide the names and other specified details of employees eligible to vote in the ballots to the appointed ballot agent. The deadlines were one working day after the orders were issued—specifically, by 4:00 PM on 15th December 2022 for the first order, and by 4:00 PM on 16th December 2022 for the second.

Importantly, the court accepted that Cleanaway did not deliberately defy the orders, but had inadequate systems to respond in a timely way.

Nature of Non-compliance: Cleanaway failed to meet these deadlines. The information was provided two working days late for the Erskine Park Orders and one working day late for the Hillsdale Orders. This resulted in a short delay for the ballot at Erskine Park, while the Hillsdale ballot experienced no delay.

Impact and Penalties: The parties agreed on the nature of the contraventions and the penalties to be imposed. They proposed a penalty of $30,000 for the Erskine Park contravention and $15,000 for the Hillsdale contravention.

Significance of Compliance: Both parties recognized the importance of timely compliance with PABOs to maintain the efficiency of the industrial relations system. They highlighted that such compliance is crucial for enabling timely industrial actions, which are regulated strictly under the Fair Work Act 2009.

These facts formed the basis of the court’s consideration and decision-making in assessing the appropriateness of the penalties and the broader implications for the industrial relations landscape. The court’s acceptance of these agreed facts and the imposition of agreed penalties reflected the cooperative approach of the parties and the court’s role in endorsing penalties that fit within an acceptable range to serve as a deterrent while acknowledging the parties’ resolution efforts.

The court considered several general principles when assessing the appropriate penalty for Cleanaway’s non-compliance with the protected action ballot orders. These principles are key to understanding how penalties are determined in such cases, particularly when the parties involved have agreed on a proposed penalty. Here are the principles that were highlighted:

1. Responsibility of the Court: The primary responsibility to determine the appropriate penalty rests with the court, even if the parties have proposed an agreed penalty.
2. Inexact Nature of Penalty Determination: Setting a penalty is not an exact science; within a permissible range, different penalties might be equally justifiable.
3. Promotion of Litigation Settlement: There is a public interest in encouraging the settlement of litigation, especially when litigation is likely to be lengthy or complex. This supports the acceptance of joint submissions where appropriate.
4. Weight of the Regulator’s View: While in this case, the TWU was not a regulator, the court treated the union somewhat like a regulatory body in this context. The expertise and views of such bodies are given considerable weight, particularly on matters within their expertise like the impact of penalties on market behavior.
5. Agreed Statements and Penalties: When the parties present an agreed statement of facts and a proposed penalty, the court may rely on these if it finds them appropriate. The court is not bound to investigate whether it would have reached the same penalty independently but should assess whether the proposed penalty is appropriate in the context.
6. Appropriateness Within a Permissible Range: The proposed penalty should not be rejected merely because the court might have chosen a different figure; it must be within a range deemed permissible under the law and appropriate to the circumstances of the case.
7. Public Interest and Judicial Oversight: The court maintains oversight to ensure that any agreed penalty serves the public interest, aligns with legal standards, and appropriately reflects the seriousness of the contravention.

These principles ensure that the penalties imposed are not only fair and just but also serve the broader goals of deterrence and compliance within the regulatory framework established by law. They help maintain a balance between recognizing the settlements reached by the parties and ensuring that such settlements are in line with the objectives of the legal and regulatory system.