Background
The Hay Point Services Pty Ltd Enterprise Agreement 2013 contained a clause (34.1) to deal with overtime. The clause provides that HPS:
"may require an employee to work reasonable overtime, and the employee shall work such overtime as required."
HPS implemented a new roster which effectively required employees to work 455 hours of overtime per year, or 8.7 hours per week.
The CFMMEU argued that this breached the overtime clause contained within the enterprise agreement as the additional hours could not be considered 'reasonable'.
Employer fined
"To that extent, the penalty imposed should be such as to warn other employers in the position of the respondent against engaging in such conduct."
Her Honour imposed the penalty as it should 'reflect the seriousness of the conduct.
Her
In doing so her Honour followed the same approach in the prior case of CFMEU v
You can read the full judgement in
Similarly to Hail Creek, the employer was found to have acted irresponsibly in implementing a decision that breached the enterprise agreement and, therefore, contravened section 50 of the FW Act. Hail Creek was handed a similar penalty of
In both the HPS and Hail Creek cases, the judges highlighted the seriousness of the breach and that "taking the odds" is not a permissible act. If an employer does that and proves to have been wrong, it will pay the price with a heavy penalty.
In fixing the penalty to be imposed upon HPS her Honour noted that
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr
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