Case: CPSU v Telstra Corporation Limited (2001) 108 IR 228
Outcome: considered
The respondents have expressed contrition and have put in place mechanisms which are designed to ensure that there will be no repetition of the breaches which have led to the present proceeding. Specific deterrence does not, therefore, loom large as a consideration in determining penalty. It does not follow that the need for general deterrence may be disregarded. As Finkelstein J said in CPSU v Telstra Corporation Limited (2001) 108 IR 228 at 231: "even if there be no need for specific deterrence, there will be occasions when general deterrence must take priority, and in that case a penalty should be imposed to mark the law's disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct ..." No less than large corporate employers, small businesses have an obligation to meet minimum employment standards and their employees, rightly, have an expectation that this will occur. When it does not it will, normally, be necessary to mark the failure by imposing an appropriate monetary sanction. Such a sanction "must be imposed at a meaningful level": see Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] ATPR 41-815 at [13]. 29 In fixing appropriate penalties for breach of each of the relevant Award terms it is necessary to bear in mind that, with the exception of the breach of Clause 12.5 (casual loadings), there were repeated breaches of each of the terms over a period in excess of five years. For a little more than half of this period the maximum penalty (calculated, having regard to s 178(2) and 719 (2), as single breaches of each relevant term) was $2,200. It was $6,600 for the rest of the period. The breaches of Clause 12.5 occurred wholly within the period during which the maximum penalty was $2,200. It is also necessary to bear in mind that the various breaches had a differential financial impact on Mr Paynting. The failure to pay him for overtime hours worked on weekdays accounted for well over half the shortfall. The bulk of this sum is attributable to a failure to comply with Clause 12.5. The next most serious shortfall was in the payment of ordinary hours. Again, it was the failure to take into account Mr Paynting's entitlement to the casual loading which was the main contributor to this underpayment. The underpayments for Saturday, Sunday and public holiday work were relatively minor. 30 Another factor which must be taken into account in the fixing of pecuniary penalties for multiple breaches of statutory stipulations is the totality principle. This principle is designed to ensure that the aggregate of the penalties imposed is not such as to be oppressive or crushing. Different views have been expressed as to the manner in which the principle ought properly to be applied. On one view the starting point should be the determination of an appropriate total penalty. That figure would then be divided by the number of breaches to produce a penalty for each breach: see CPSU v Telstra Corporation Limited (2001) 108 IR 228 at 230[7]. The orthodox position, however, which I consider should be adopted, is that the starting point is the determination of appropriate penalties for each contravention of the statutory norm. The aggregate figure is then considered with a view to ensuring that it is an appropriate response to the conduct which led to the breaches: see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53. See also Ponzio v B &amp; P Caelli Constructions Pty Ltd [2007] FCAFC 65 at [145] per Jessup J. This approach was recently described, in the criminal context from which the totality principle is derived, as "the orthodox, but not necessarily immutable, practice" adopted by sentencing courts: see Johnson v R [2004] HCA 15 ; (2004) 205 ALR 346 at 356[26] per Gummow, Callinan &amp; Heydon JJ.