Case: Victoria University of Technology v Australian Education Union (1999) 91 IR 96 
Outcome: applied
Before moving to apply these considerations to the facts set out in the Primary Reasons, two further points must be made. First, the Court has a discretion whether or not to impose a penalty: s 719 of the WR Act and see also Australasian Meat Industry Employees' Union v Australia Meat Holdings (1998) 82 IR 76 at 78 and Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [33] (which considered the discretion to impose penalty under s 178 of the WR Act prior to substantial amendments to the WR Act in 2005). In other words, there is no principle that a Court must, in all cases of proven breach, impose a penalty: Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [33]. 16 Telstra submitted that no penalty, or alternatively that a 'low range penalty' should be imposed. In support of those contentions, Telstra referred to the following facts and matters: (1) there was no element of wilful or deliberate non-compliance by Telstra; (2) Mr McDonald's job was redundant and he was to be retrenched unless otherwise redeployed. Instead of retrenching Mr McDonald, Telstra accepted his request to redeploy him to a job more than two pay classification levels below his current employment. Telstra did not have to do so; (3) Telstra accepted the redeployment of Mr McDonald on a genuine but mistaken belief that it was only required to pay Mr McDonald the lower rate of pay; (4) the CEPU did not suggest that Telstra had any relevant "prior convictions". There is nothing to suggest that Telstra is disposed to contravene certified agreements to which it is a party. In those circumstances, no specific deterrence is relevant; (5) Telstra is a very large employer with employees across Australia and has been bound by numerous awards and certified agreements over the years; (6) a penalty would serve no remedial purpose. Mr McDonald will be fully compensated by the order made on 2 October 2007 in the Primary Reasons; (7) the Court cannot be influenced by any concern to reimburse the applicant or Mr McDonald for costs incurred in prosecuting the application: Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34]; (8) finally, although a penalty acts as a general deterrence, such deterrence is relevant where the obligations are clear, even if the employer was ignorant of the obligation. In the present case, the position adopted by Telstra was arguable but erroneous. 19 The Court should not be concerned to reimburse an applicant for costs incurred in bringing the application by the imposition of a penalty under s 719 of the WR Act . The legislative policy of the WR Act in relation to costs is found in s 824 of the WR Act , which states that a party should not pay costs except in two prescribed circumstances. In light of this policy, it would be inappropriate to impose a penalty for the purpose of reimbursement: Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at [63]-[64]; Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34]. Only when it has been determined that a penalty is appropriate, is it necessary to have resort to s 841 of the WR Act to decide whether the penalty should be paid to the Commonwealth or to a "particular organisation or person": Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34] cf CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 232-233; Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union (No 2) (2001) 110 IR 372 at [8].