Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Performance Security Services [2000] ICQ 23 (2000) 164 QGIG 198

198 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 June, 2000 INDUSTRIAL COURT OF QUEENSLAND Industrial Organisations Act 1997 – s. 245 and s. 246 – application under s. 245 and s. 246 that penalties be imposed on respondent for contraventions of s. 237 and s. 238 of Industrial Organisations Act 1997 Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Performance Security Services (No. C35 of 1999) PRESIDENT HALL 13 June 2000 REPORT ON DECISION (as edited) In giving his decision from the Bench on 8 June 2000, President Hall stated:– “ I find this a difficult matter. I have great difficulty with section 246. It is obviously drawn from the Federal Act. If the language of the Federal Act be treated as carrying with it the interpretation previously placed upon it, it seems to me that, in these circumstances, one would, as a matter of course, impose a penalty and for reasons developed by Mr Justice Marshall in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v DMG Industries Proprietary Limited 89 IR 360 at 365, the penalty would be substantial in order to assert the Court’s disapproval of the conduct in which the respondent has engaged. The difficulty is that in enacting section 246, it was enacted against parallel legislation, the Penalties and Sentences Act 1992, which operates in the criminal jurisdiction. One would have assumed that in saying that the penalty under section 246 was to be a pecuniary penalty and that it was not to be a matter of conviction for an offence, the legislature was trying to deal with the matter as less serious than a true criminal offence. In the case of a true criminal offence, a Court, by section 12(2)(c) of the Penalties and Sentences Act 1992, would be required to consider the impact that recording a conviction would have on the offender’s economic or social well being, and I stress the word ‘economic’. By section 14, in a case where it is appropriate for the respondent to pay compensation to moderate the quantum of any penalty, to ensure that, in utilising what limited resources the respondent has, preference is to be given to satisfy any order for compensation. I frankly think that in the respondent’s straiten circumstances, if this were a true criminal matter, a conviction would not be recorded. The respondent would be required to enter into a recognisance. A penalty would not be imposed in order that moneys be freed up to pay compensation. (I note that, at one stage, in consequence of the deed of settlement, the applicant was prepared to accept a sum of money.) I think in all the circumstances, the appropriate course is to adjourn this matter until 15 March 2001. I shall mention it on that day. If, on that day, the outstanding sum of $1,668 is not then paid, I shall turn my mind to the question of whether, by way of analogy with a recognisance, the recognisance should be treated as breached. I adjourn the Court.”. Dated this thirteenth day of June, 2000. By the Commission, [L.S] E. EWALD, Industrial Registrar. Released: 14 June 2000 Appearances:– Mr J. Martin of the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees, for the Appellant. Ms P. Hay instructed by Harvey and Associates, Solicitors, for the Respondent. Mr C. Murdoch instructed by Crown Solicitor, with him Mr F. Pulsford, for the Crown. -- 1 of 1 --