Employer acted carelessly by hiring many employees without ensuring training compliance: court
The Federal Court has ruled that an employer must pay pecuniary penalties for multiple breaches of enterprise agreements, violating section 50 of the Fair Work Act.
The court found that Qube Ports Pty Ltd., the employer, failed to provide the required training to 49 employees within the stipulated timeframes between September 2017 and April 2023.
Two enterprise agreements governed the employer's operations at the Fremantle port: the 2016 agreement, approved on May 2, 2017, and the 2020 agreement, approved on December 21, 2021. Both agreements contained identical provisions requiring guaranteed wage employees to receive training in a skill within six months of employment and an additional skill within 12 months. The employer failed to meet these training obligations, leading to breaches under both agreements. Under s. 557 of the Fair Work Act, multiple contraventions arising from a course of conduct are treated as a single contravention, and the court determined that four contraventions of s. 50 had occurred—two under each agreement.
The main legal issue in the case was whether the breaches should be treated as separate contraventions or as part of a single course of conduct for penalty purposes. The employer argued that the breaches were part of a continuous failure and should be consolidated, while the applicant maintained that each contravention required a distinct penalty. The court applied deterrence principles and ruled that penalties must be significant enough to prevent future breaches without being considered a mere "cost of doing business."
The Federal Court distinguished between two groups of employees affected by the employer's failures. The employer did not provide timely training to the first employees hired between 2017 and 2019 and failed to explain the non-compliance. The court found that these breaches suggested inadequate compliance systems. The second group, employed between 2020 and 2022, faced training delays due to operational challenges during the COVID-19 pandemic and increased demand at the Fremantle port. However, the court concluded that the employer acted carelessly by hiring many employees without ensuring it could meet its training obligations.
Although the breaches resulted in delayed rather than absent training, the court determined that the employer's failure deprived employees of skills that could have enhanced their promotion opportunities and earnings. The court acknowledged that the employer took remedial steps, including ceasing to hire new guaranteed wage employees and implementing a compliance monitoring system.
The court also considered the employer's history of previous contraventions under the act. While most prior breaches were minor and involved underpayment issues, they demonstrated ongoing compliance failures. The court ruled that the employer required a penalty sufficient to deter future breaches. As a result, the court-imposed penalties to encourage compliance while ensuring that breaches of enterprise agreements do not become routine business practices.
