Australian Education Union v Yooralla Society of Victoria

• Jurisdiction: Australia Federal only
• Judgment Date: 13 August 2021
• Neutral Citation: [2021] FCA 954
• Date: 13 August 2021
• Court: Federal Court

Federal Court of Australia

Australian Education Union v Yooralla Society of Victoria [2021] FCA 954

Appeal from:	Australian Education Union v Yooralla [2020] FCCA 1659
File number(s):	VID 480 of 2020
Judgment of:	WHEELAHAN J
Date of judgment:	13 August 2021
Catchwords:	INDUSTRIAL LAW – civil penalties – appeal from a decision of the Federal Circuit Court of Australia imposing penalties for four contraventions of the Fair Work Act 2009 (Cth) – where the question of liability was contested and where respondent was successful on liability at first instance but was found to have contravened the Act on appeal – where the penalties imposed by the primary judge were at the low end of the range and subject to a reduction of 50% by application of the totality principle – whether the penalties imposed were manifestly inadequate – whether primary judge misunderstood or misapplied the totality principle – whether the 50% reduction was manifestly excessive – whether the primary judge had given undue weight to certain matters – whether the primary judge failed to have adequate regard to the respondent’s lack of apology – penalties imposed by primary judge were not manifestly inadequate – primary judge’s application of the totality principle was correct and the reduction of 50% was not manifestly excessive – primary judge did not give undue weight to certain matters or fail to have regard to the respondent’s lack of apology – appeal dismissed.
Legislation:	Fair Work Act 2009 (Cth) ss 44–45, 305, 539(2), 546, 546(1), 556-557 and 570 ; Attendant Care – Victoria Award 2004 Disability Services Award (Victoria) 1999 Social, Community and Disability Services Industry Equal Remuneration Order 2012 cl 5.3, 5.5 Social, Community, Home Care and Disability Services Industry Award 2010
Cases cited:	Allesch v Maunz [2000] HCA 40; 203 CLR 172 Australian and International Pilots’ Association v Qantas Airways Ltd [2009] FCA 500 Australian Building and Construction Commissioner v Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union (the Australian Paper Case) (No 2) [2017] FCA 367 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159; 258 FCR 312 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 262 FCR 243 Australian Education Union v Yooralla [2018] FCCA 2758 Australian Education Union v Yooralla [2019] FCA 1511 Australian Education Union v Yooralla (No 2) [2019] FCA 1749 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 Australian Rail, Tram and Bus Industry Union v Qube Logistics (Rail) Pty Ltd [2020] FCA 1520; 300 IR 198 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607; 168 IR 368 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 194 IR 461 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201; 272 FCR 290 Construction, Forestry, Mining, Maritime and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126; 265 FCR 208 CPSU, The Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 1364; 108 IR 228 House v The King (1936) 55 CLR 499 Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 Mill v The Queen [1988] HCA 70; 166 CLR 59 Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; 168 FCR 383 Norbis v Norbis (1986) 161 CLR 513 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; 299 IR 404 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v E, AD [2005] SASC 332; 93 SASR 20 R v Knight (1981) 26 SASR 573 R v Rossi (1988) 142 LSJS 451 Trade Practices Commission v CSR Ltd [1991] ATPR ⁋41-076 Warren v Coombes [1979] HCA 9; 142 CLR 531
Division:	General Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	41
Date of hearing:	16 July 2021
Counsel for the Appellant:	Ms F Knowles
Solicitor for the Appellant:	Australian Education Union
Counsel for the Respondent:	Mr M G Rinaldi
Solicitor for the Respondent:	DLA Piper

ORDERS

		VID 480 of 2020
BETWEEN:	AUSTRALIAN EDUCATION UNION Appellant
AND:	YOORALLA SOCIETY OF VICTORIA T/AS YOORALLA Respondent

order made by:	WHEELAHAN J
DATE OF ORDER:	13 August 2021

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1. This is an appeal from a decision of a judge of the Federal Circuit Court of Australia. The primary judge ordered the respondent (Yooralla) to pay pecuniary penalties to the appellant (AEU) in the total sum of $14,850 pursuant to s 546(1) of the Fair Work Act 2009 (Cth). The penalties were imposed in respect of four contraventions of the Fair Work Act involving underpayments on account of ordinary hours of work, annual leave, annual leave loading, and personal leave that were payable to an employee of Yooralla and member of the AEU, Erin Stanios (née Legg) (the employee).

2. This appeal concerns the primary judge’s assessment of penalty, and does not concern questions of liability. Initially, the AEU’s claim was dismissed on the question of liability by a different judge of the Federal Circuit Court: Australian Education Union v Yooralla [2018] FCCA 2758. An appeal from that decision was allowed in part by Steward J, who made findings that the employee had not been paid in accordance with the applicable industrial instruments: Australian Education Union v Yooralla ...