APPEAL AGAINST A DECISION OF THE INDUSTRIAL MAGISTRATE IN MATTER M 145/2022 GIVEN ON 9 APRIL 2024 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FULL BENCH CITATION : 2026 WAIRC 00503 DELIVERED : Thursday, 9 July 2026 FILE NO. : FBA 10 OF 2024 Appellant AND Western Australian Prison Officers' Union of Workers Respondent FILE NO. : FBA 13 OF 2024 Appellant AND Minister for Corrective Services Respondent ON APPEAL FROM: Jurisdiction : Industrial Magistrates Court Coram : Industrial Magistrate T Kucera Citation : [2024] WAIRC 00152 File No : M 145 OF 2022 CatchWords : Industrial Law (WA) – Appeal of pecuniary penalty imposed –Whether Minister is an individual or body corporate for penalty purposes where Minister is sued in official capacity – Whether legal status or capacity determines maximum penalty – Whether penalty imposed manifestly excessive where unsupported by evidence of deliberateness – Whether penalty imposed should be increased where evidence does not support finding of corrective action – Whether Full Bench should re-exercise penalty discretion Legislation : Industrial Relations Act 1979 (WA) Interpretation Act 1984 (WA) Constitution Acts Amendment Act 1899 (WA) Public Sector Management Act 1994 (WA) Prisons Act 1981 (WA) School Education Act 1999 (WA) Fair Work Act 2009 (Cth) Workplace Relations Act 1996 (Cth)  Result : Minister’s Appeal Grounds 7 and 8 upheld, Penalty Decision quashed and substituted; Union’s Cross-appeal Ground 2 dismissed Representation in FBA 10 of 2024: Counsel: Appellant : Mr J Carroll of counsel Respondent : Mr N Ellery of counsel Solicitors: Appellant : State Solicitor’s Office Respondent : Slater and Gordon Lawyers Representation in FBA 13 of 2024: Counsel: Appellant : Mr N Ellery of counsel Respondent : Mr J Carroll of counsel Solicitors: Appellant : Slater and Gordon Lawyers Respondent : State Solicitor’s Office Case(s) referred to in reasons: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3 Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 973 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 Briginshaw v Briginshaw (1938) 60 CLR 336 Callan v Smith [2021] WAIRC 00216 Commissioner of Police v McCormack [2018] WAIRC 00809 Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 Construction, Forestry, Mining and Energy Union v State of Victoria (No 2) [2013] FCA 1034 Coochey v Commonwealth of Australia [2005] FCA 1165 The Director General of the Department of Justice v The Civil Service Association (Inc) [2004] WAIRC 13765 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68 Frearson v Minister for Public Sector Management (Tas) (1998) 82 IR 211 Minister for Corrective Services v Western Australian Prison Officers’ Union of Workers [2024] WAIRC 01034 Patole v Child & Adolescent Health Service [2024] WASCA 126 United Workers’ Union v Compass Group Healthcare Hospitality Services Pty Ltd & Another [2024] SAET 49 Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2023] WAIRC 00725 Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2023] WAIRC 00867 Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2024] WAIRC 00152 Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2025] WASCA 177 Reasons for Decision COSENTINO SC: The grounds of appeal relating to penalty were remitted to this Full Bench for determination after the Industrial Appeal Court delivered its decision upholding the WA Prison Officers’ Union of Workers’ appeal relating to whether there had been a contravention of cl 22.1 of the Department of Justice Prison Officers’ Industrial Agreement 2020: Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2025] WASCA 177. The remitted grounds of appeal in the Minister’s appeal FBA 10 of 2024 are: Ground 7: that the Industrial Magistrate made an express error because he applied the incorrect maximum penalty. Ground 8: that the penalty imposed was manifestly excessive. The remitted ground of appeal in the Union’s appeal FBA 13 of 2024 is that the penalty imposed by the Industrial Magistrate was manifestly inadequate because he mistook the facts in finding that corrective action had been taken by the Minister, there being no admissible evidence to support that finding. I have considered the Minister’s further written and oral submissions in relation to Grounds 7 and 8 of his appeal. My views as expressed at [148]-[185] of my reasons in Minister for Corrective Services v Western Australian Prison Officers’ Union of Workers [2024] WAIRC 01034; (2024) 105 WAIG 17 and my ultimate conclusions have not changed. As a matter of statutory construction of the Prisons Act 1981 (WA), it is implicit that the Minister acts for and on behalf of the State in his capacity as the employer of prison officers and therefore in his capacity as a named party to the Agreement, and therefore in his capacity as a named party to the proceedings. The Minister submits that the Union chose to name the Minister as respondent to its claim, although it was open for it to name the State as respondent. Having chosen to name the Minister, it was the Minister’s contravention that was claimed and established. The fact that the Minister was acting as agent for the State is beside the point. Section 83(4A) of the Industrial Relations Act 1979 (WA) (IR Act) distinguished between ‘the case’ of a body corporate and ‘the case’ of an individual. The case brought by the Union was a case of a body corporate’s contravention acting through the Minister as its agent. The application of the body corporate penalty accords with the substance and practical reality of the case for the purpose of imposing a penalty. In relation to Ground 8, the evidence established a proper basis for his Honour’s finding that the contravention was the result of a deliberate choice knowing alternative constructions of the Agreement’s meaning were available. That is, the contravention was not inadvertent. His Honour’s approach in this regard was consistent with the authorities referred to in [177] of my previous reasons. Further, his Honour’s consideration of the matters under the heading ‘Conduct was deliberate’ were directed not at determining the level of penalty to impose, but rather to justifying the imposition of a penalty versus no penalty. His Honour was seeking to distinguish this matter from a previous decision in which his Honour had declined to impose a penalty. When it came to determining the quantum of the penalty, his Honour considered a range of factors, including the fact that the outcome of the decision had ‘at least clarified what entitlements Principal Officers like Ms Harvey are entitled to receive under the 2020 Agreement’ and that ‘the respondent made a deliberate choice to engage in contravening behaviour and that it should be deterred from repeating conduct of this kind’: [83]. The ultimate penalty imposed was at the lower end of the scale, representing about 23% of the maximum penalty of $65,000. The broad discretionary exercise of determining penalty involves ‘instinctive synthesis’ rather than a ‘rigid catalogue of matters for attention’: Callan v Smith [2021] WAIRC 00216 [91]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 (Australian Ophthalmic) [55]. The Industrial Magistrate clearly appreciated the nature of the exercise in arriving at the low penalty he did. The Minister has not established that factoring of ‘deliberate choice’ has resulted in a penalty being imposed which was manifestly excessive. I would dismiss both penalty grounds of appeal in FBA 10 of 2024. I have considered the Union’s further written and oral submissions in relation to Ground 2 of its appeal. I note that the Minister concedes that the Industrial Magistrate was in error in concluding that the Minister had taken corrective action. There was no evidence one way or another as to whether or not corrective action had been taken. However, for the reasons I expressed at [197] of my previous reasons, I do not regard the error as material to the result and would therefore dismiss this ground of appeal. EMMANUEL C AND TSANG C: We have had the benefit of reading the Senior Commissioner’s draft reasons for decision and adopt the Senior Commissioner’s naming conventions for the parties, the Agreement and the IR Act. As outlined by the Senior Commissioner at [1] above, the grounds of appeal concerning the penalty imposed by Industrial Magistrate Kucera in Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2024] WAIRC 00152 (Penalty Decision), have been remitted for hearing and determination. At [82]–[83] of the Penalty Decision, his Honour said: Penalty to be imposed 82 For the reasons outlined in the preceding paragraphs, I have determined that a fine of $15,000 to be the most appropriate disposition in this case. 83 The quantum of the pecuniary penalty is in my view, appropriate having regard to all the circumstances of this matter including the following: i. the outcome in the decision has at least clarified what entitlements Principal Officers like Ms Harvey are entitled to receive under the [Agreement]; ii. while the breach falls at the lower end of the range of contravening behaviour, Ms Harvey was deliberately deprived of an entitlement that she would otherwise have been entitled to receive; iii. the breach occurred before the issuance of the WAPOU Caution decision and so the issuance of the caution to the [Minister] in that matter is not relevant to the penalty to be imposed; iv. the size and scale of the [Minister’s] business is such that there were alternatives to clarify its interpretation of the [Agreement] instead of engaging in contravening conduct; v. the [Minister] made a deliberate choice to engage in contravening behaviour and that it should be deterred from repeating conduct of this kind. The reference to the ‘WAPOU Caution decision’ at [83(iii)] of the Penalty Decision, refers to what his Honour said at [8]–[11] of the Penalty Decision: (footnotes omitted) Determining the orders to be made 8 I recently set out the principles to be applied when determining the orders the Court should make in an application under s 83 of the IR Act, in a matter involving the same parties: Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2023] WAIRC 00867; 103 WAIG 1878 (WAPOU Caution decision). 9 It is also relevant the WAPOU Caution decision involved a breach of the Agreement by the [Minister], even though it did not occur at the prison where Ms Harvey works and was in relation to a different entitlement; the payment for personal leave. 10 At paragraph [20] of the WAPOU Caution decision, I noted the primary purpose of pecuniary penalties under a statute such as the IR Act, is to secure compliance with the provisions of the statutory regime. 11 I also observed the Court has a discretion under s 83 of the IR Act and may in an appropriate case, issue a caution instead of imposing a pecuniary penalty. When exercising this discretion, the Court is required to turn its mind as to whether an appropriately crafted warning would, instead of a pecuniary penalty, have the effect of deterring a contravener from engaging in the same or similar conduct. Minister’s appeal grounds 7 and 8 in FBA 10 of 2024 Grounds 7 and 8 of the Minister’s appeal in FBA 10 of 2024 appeal the $15,000 penalty imposed, on the grounds that his Honour erred in law in applying s 83(4A)(a) of the IR Act when that section only applies to a body corporate and the Minister is not a body corporate for the purposes of the Prisons Act 1981 (WA) (Prisons Act), and that the quantum of the penalty was manifestly excessive. The parties’ contentions are contained in the following written submissions: The Minister’s submissions filed on 5 June 2024. The Union’s responsive submissions filed on 19 June 2024. The Minister’s post-hearing submissions filed on 22 July 2024. The Minister’s remittal-hearing submissions filed on 10 March 2026. The Union’s remittal-hearing submissions filed on 16 March 2026. The Minister’s submissions filed on 5 June 2024 (at [19(a)] above), states: 64. On 9 April 2024 His Honour imposed a penalty of $15,000 for the breach he found by reference to section 83(4A) of the [IR Act], which provides penalties where the contravention is by a body corporate, on the basis ‘a body corporate … would include a government department’: AB 156; [5]. 65. His Honour erred in law because Departments do not have a corporate personality. In any event the Respondent to the claim is the Minister personally, not the Department. 66. The Minister is not constituted a body Corporate under the Prisons Act 1981. 67. The consequence for the setting of penalty of His Honour finding the [Minister] is a body corporate was substantial in that in the case of a body corporate a serious contravention can attract a penalty of up to $650,000 or $65,000 if not serious: section 83(4A)(a). In the case of an individual the available penalties are only up to $130,000 and $13,000 respectively. On this ground alone the penalty should be set aside or varied. 68. His Honour stated the ‘issue to be decided in this matter is whether principal officers under the [Agreement] are entitled to be paid at overtime rates on days they are rostered to work on public holidays’: [6], AB 123, Reasons for Decision 28 August 2023. His Honour’s construction of the relevant provisions against the [Minister] was on a basis submitted by neither party. In those circumstances a finding that the breach was deliberate and a matter of aggravation because the [Minister] took the risk that his interpretation was incorrect was unreasonable: AB 161-162; [58]-[60]. 69. No evidence was led that the interpretation of the [Minister] was not one honestly held nor was there a finding that it could not be reasonably held. In circumstances where the claim is substantially one brought to obtain an interpretation of disputed provisions an employer should not be under the threat of censure and a significant penalty, where there is genuine reasonable dispute as to the entitlement, unless it is paid until the employer obtains the Commission’s interpretation of the clauses in dispute under section 46 of the [IR Act]. The [Minister] had a duty to pay Ms Harvey only in accordance with the [Agreement]: [The Director General of the Department of Justice v The Civil Service Association of Western Australia (Inc) [2004]] WAIRC 13765 at [40]-[42]. Discharging that duty required a position to be taken by the [Minister] regarding the meaning of the disputed provisions. 70. In the circumstances a caution, if any penalty at all, was appropriate. The Union’s submissions filed on 19 June 2024 (at [19(b)] above), states: 40. The Minister at this appeal ground asserts that the Minister is not a body corporate and His Honour therefore erred in imposing a penalty amount as if though the Minister was a body corporate. 41. This submission, if it were correct, means that the [Minister] employs prison officers in his capacity as a ‘natural person’, by virtue of the word ‘individual’ in section 83(4A)(b) of the IR Act having that meaning. 42. This submission is plainly wrong because, if it were correct, several absurd consequences would follow, including that a natural person who employs prison officers while they are the [Minister], being the natural person at the time of the relevant breach, would continue to be their employer as an individual after they vacate office. 43. The more sensible view is that the [Minister] employs prison officers in their capacity as the holder of a principal executive office of the government under section 43(2) of the Constitution Acts Amendment Act 1889 [sic] (WA); a public authority under section 7 of the IR Act (the definition of which includes ‘any Minister of the Crown in the right of the State’); or a non-SES organisation under section 3 of the Public Sector Management Act 1994 (WA) [(PSM Act)]. 44. Section 83(1) of the IR Act clearly provides for the Industrial Magistrate’s Court to order a penalty against public bodies, including non-SES organisations, as those bodies fall within the meaning of ‘person’ as used within section 83(1). 45. A more preferable view is that the words ‘body corporate’ should be interpreted to include ‘non-SES organisations’ including holders of principal executive offices of government, i.e. Ministers. 46. His Honour was correct to apply section 83(4A)(a) in determining the appropriate penalty because the words ‘body corporate’ in section 83(4A)(a) should be interpreted to include the [Minister]. 47. If the Union is wrong in relation to what it has submitted above, and the penalty should have been imposed as if though the Minister was an ‘individual’, then the Union submits that the individual that effected the breach at the time should be ordered to personally pay the monetary penalty and that the penalty cannot be covered by a third party, in effect, a ‘personal payment order’ should be made against the individual. 48. The Union submits that source of the power for a personal payment order is found at ss 83(4)(a)(ii) read together with 83(4A)(b), 83(5) and 83(6)(a) IR Act. 49. The High Court of Australia has recently approved personal payment orders of pecuniary penalties in industrial matters in [Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3 (ABCC v CFMEU)]. Albeit that was under the Fair Work Act 2009 (Cth) (FW Act), what the High Court found can translate into our present matter. 50. In ABCC v CFMEU the High Court held that s 546(1) FW Act supported the making of a personal penalty order requiring an individual to meet a penalty without indemnification. 51. As the High Court observed at [39], section 546(1) contains an express conferral of jurisdiction with respect to the making of a pecuniary penalty order. It is expressed as a power to order ‘a person to pay’ a pecuniary penalty that the court considers is appropriate in the event of contravention. This is not unlike the express power conferred under s 83(4), (a)(ii) of the IR Act. 52. The High Court went on to note at [40] that ‘every court possesses jurisdiction arising by implication, upon the principle that a grant of power carries with it everything necessary for its exercise. The term “necessary” in connection with the implied power is to be understood as identifying a power to make orders which are reasonably required or legally necessary to the accomplishment of what is specifically provided to be done by the statute.’ It would follow that in our case, the Industrial Magistrates Court possesses such jurisdiction arising out [sic] that implication. 53. The Union submits therefore that similar to what the High Court determined was the principle and only purpose of s 546(1) FW Act at [41], the principle and only purpose of s 83(4)(a)(ii) IR Act is to require that a person pay a penalty which carries with it a power to ensure that the individual’s penalty not be paid by a third party in order that the effect of the penalty to a much greater extent be felt by the individual, and as observed by the High Court at [42], the only way that deterrence may be achieved is to make the payment by the Minister as an individual a reality for him and the Department of Justice. 54. This deterrent effect was envisaged by His Honour, being to deter the Minister from repeating or engaging in similar contravening conduct. 55. Otherwise, there would be no deterrent effect and the penalty provisions for individuals in this scenario and the individual statutory penalty provisions in that case under the IR Act at s 83(4A)(b)(ii) would be plainly ignored as insignificant, and would otherwise never have any reality to them. There is a need for the deterrent effect to exist, that is the purpose of penalties. That is why the Union says: a. either His Honour correctly applied the body corporate penalty limit as if though the Minister was some type of public authority or a non-SES organisation; or b. the Minister, if held to be an individual, should personally pay. The Minister’s post-hearing submissions filed on 22 July 2024 (at [19(c)] above), states: (footnotes omitted) Ground 7 13 No argument of substance is raised by the [Union] in opposition to ground 7. Whether the Minister is a body corporate for the purposes of a particular act is a matter of legal status conferred or created by legislation. It cannot be inferred as is done in [42] by the [Union] in its submissions. 14 Section 43(1) of the Constitution Acts Amendment Act 1899 provides there can be principal offices of Government that are liable to be vacated on political grounds. These have become the Ministers’ offices. No corporate personality is attached to the offices or their incumbents. The offices are required to be occupied in a personal capacity. Section 43(4) requires a person who accepts such an office before any function is performed to take an oath before the Governor. 15 The definition of public authority in section 7 of the [IR Act] is no relevance nor is the definition of non-SES organisation in section 3 of the [PSM Act]. 16 The [Minister] is not constituted a body corporate under, or for the purposes of, the Prisons Act. There are many acts where the relevant Minister is constituted a body corporate. For example section 17(1) [sic] of the School Education Act 1999 for the purposes of that act provides the [sic] ‘the Minister is a body corporate with the name Minister for Education’. If a Minister was otherwise a body corporate this would be unnecessary. Personal payment order 17 In [47] of its submissions the [Union] seeks an order that the [Minister] personally pay the penalty. This was not sought in the claim nor during the proceedings at first instance. This is substantial relief which cannot be belatedly sought by submission on appeal. No decision as to this was made by His Honour at first instance to appeal from and no case was raised at first instance, or now, for the [Minister] to address that a personal payment order should be made. 18 Section 83(4)(a)(ii) of the [IR Act], relevantly, simply provides an Industrial Magistrate may impose a pecuniary penalty. Unlike section 546(1) of the [FW Act], it does not say the Court can ‘order a person to pay a penalty’. Whether section 83(4)(a)(ii) allows for the making of a personal payment order does not seem to have yet been considered. The [Minister’s] submission is that the wording is narrower than section 546(1) and does not allow that order to be made. The only order that can be made is that the breach is established and a penalty is imposed. Section 83F(l)(a) simply requires identification of the person liable to pay the penalty for enforcement purposes. 19 The High Court in [ABCC v CFMEU] unanimously held in the interests of deterrence a personal payment order can be made under section 546(1). In the case there under consideration such an order was made against a union official who had a history of breach conduct that was ‘deliberate and knowingly unlawful’: [84]. The financial detriment that would normally deter further breach behaviour was of little effect because the union of which the official was a member paid the penalties: [85]-[86]. That is not the situation here. The [Minister] has only one other recorded breach which also concerned a dispute with the [Union] as to the meaning of other clauses of the Agreement. The penalty for that breach was a caution. 20 There was no need or basis established for making a personal payment order even if it had been sought and could be made. There was no evidence that the [Minister] had a history of ‘deliberate and knowingly unlawful’ conduct, was otherwise uncaring of or had wilfully disregarded his obligations under the Agreement that justified orders intended to deter further breaches being committed. 21 The status of the [Minister] in the absence of such conduct excludes the need for a personal payment order. The Minister’s remittal-hearing submissions filed on 10 March 2026 (at [19(d)] above), states: (footnotes omitted) II. Ground 7 6. Ground 7 of the Minister’s appeal is that the Industrial Magistrate made an express error because he applied the incorrect maximum penalty. 7. The Senior Commissioner dealt with this ground in her reasons in the first Full Bench appeal. 8. As the Senior Commissioner identified, the Minister is not a body corporate and is not constituted as a body corporate under the Prisons Act, or any other Act. 9. The Senior Commissioner observed at [160] that ‘the fact that the Minister is not themselves a body corporate is not the end of the matter’. 10. The Minister submits that is the end of the matter. The Union claimed and established that the Minister, who is an individual, contravened an entitlement provision. 11. The Minister accepts that he acts as agent for the State when employing prison officers. Although the Minister would qualify the Senior Commissioner’s analysis at [165] of her reasons to say that [16] of Patole v Child & Adolescent Health Service [2024] WASCA 126 [(Patole)] deals with the non-statutory executive power of the State to enter into employment contracts. In this case a statutory power was exercised (Prisons Act, s 13). It is a question of statutory construction as to whether that power is a power to employ ‘for and on behalf of’ the State. Unlike the [PSM Act] and Health Services Act, the power to engage prison officers is not stated expressly to be ‘for and on behalf of’ the State. However, relevant indicia indicate the Minister is engaging such officers for and on behalf of the State. This includes the matters referred to by the Senior Commissioner at [162]–‍[164], with the effect being that the Minister and prison officers are part of the ‘Public Sector’ for the purposes of the [PSM Act]. It is also relevant that prison officers are required to take an oath which includes that they will ‘well and truly serve the State as a prison officer of Western Australia’. 12. However, the question is not whether the Minister was acting in his official capacity, or whether he acts as agent of the State, or whether he would be entitled to indemnification from the State. 13. That is not the correct question because the Union sued the named party to the Agreement (the Minister) and did not sue the State. 14. Whether the Union could have sued the State is not a question that arises on this appeal because the Union did not sue the State. 15. Having chosen to sue the Minister, the named party to the Agreement and a person who is not a body corporate, the individual penalty applies: see Frearson v Minister for Public Sector Management (Tas) (1998) 82 IR 211, 216 (Heerey J) [(Frearson)]. 16. If the test was whether an individual was acting as agent for a body corporate (or body politic) or was entitled to indemnification from a body corporate (or body politic) for their contravening conduct, then where directors of companies are found to have been the guiding mind behind a corporation’s conduct, the maximum penalty for a body corporate should apply to the director even where the director is sued. III. Ground 8 17. Ground 8 is that the penalty imposed was manifestly excessive. 18. It was for the Union to prove at first instance, on the balance of probabilities, any fact or circumstance which was alleged to be an aggravating factor relevant to penalty. As a matter of procedural fairness, it was also necessary that any such matter relied upon by the Industrial Magistrate needed to be fairly brought to the Minister’s attention so that he could be heard before a penalty was imposed. 19. The penalty decision was dealt with on the papers with the parties’ consent. 20. The Industrial Magistrate had before him written submissions of each of the parties, the evidence given at trial on liability, and a statement of Mr Beven Hanlon. For the reasons the Industrial Magistrate gave at [22]–[24] of his Penalty Reasons, his Honour did not consider or rely upon that statement for the purposes of penalty and there is no challenge to his finding in that regard. 21. At [83] of the Penalty Reasons, the Industrial Magistrate identified ‘circumstances’ that made a fine of $15,000 appropriate. The fifth ‘circumstance’ relied upon, which is the critical factor relied upon by the Industrial Magistrate, was that the ‘Minister made a deliberate choice to engage in contravening behaviour and that it should be deterred from repeating conduct of this kind’. 22. Framed in that way, it appears that the Industrial Magistrate found that the Minister engaged in a ‘knowing’ contravention – that is, that the Minister knew that overtime was owed to Ms Harvey for the King’s Birthday public holiday but refused to pay overtime to her for her work on that day. 23. As an aside, it is not clear who is said to have made such a ‘deliberate choice’, with what knowledge such a ‘deliberate choice’ was made, and when in particular such a ‘deliberate choice’ was made. Without those matters being clearly identified and put to the Minister, he could not be expected to fairly respond to those allegedly aggravating factors whether by evidence or submissions. 24. The Industrial Magistrate’s findings in respect of that ‘fact’ or ‘circumstance’ (being the alleged ‘deliberate choice’) are set out at [51]–[60] under the bold heading ‘Conduct was deliberate’. It is useful to set that out in full: It is my view that the [Minister’s] deliberate choice regarding its interpretation of the relevant clauses of the [Agreement] relating to work on public holidays is what differentiates the [Minister’s] conduct in the present case from what was in issue in the WAPOU Caution decision. There was evidence in the substantive hearing that before AASO Vose moved to Karnet Prison Farm (Karnet), Ms Harvey took her public holidays as paid days off. If she was required to work, Ms Harvey was paid at overtime rates. However, in September 2022, following the arrival of AASO Vose at Karnet, the [Minister] issued a Departmental Guidance Note (Exhibit R2) that changed this practice (Guidance Note). The effect of the Guidance Note, particularly in so far as it applied to Principal Officers at Karnet (including Ms Harvey) was to interpret the provisions regarding Principal Officers’ entitlements on public holidays differently. The [Minister] said it issued the Guidance Note because ‘it did not have a consistent approach in relation to work on public holidays’. Simply put, the [Minister] wanted to address the situation where there were some Principal Officers who, before the Guidance Note issued, were getting public holidays as paid days off and some who did not. It also follows that the [Minister] took the view there were some Principal Officers who were potentially being paid at overtime rates, who were receiving a windfall and it wanted this to cease. Consequently, the [Minister] decided to adopt a new universal approach. This resulted in some employees like Ms Harvey being required to work on public holidays at their usual salary, on days they weren’t previously required to and for which they would not be paid at overtime rates. The [Minister] does not dispute this occurred and that it made a deliberate choice to interpret the [Agreement] regarding the requirement for Principal Officers to work on public holidays and what they would be paid. I therefore find the [Minister] embarked on a deliberate course which resulted in the breach. In choosing a different interpretation, the [Minister] decided to take a risk that its interpretation was correct. It cannot be said the breach was the result of a mistake or inadvertence. In this case the [Minister] knew that it would be directing Ms Harvey to work on a public holiday and that it would not only be depriving her of a paid day off, but her entitlement to be paid at overtime rates for the interruption to her leisure time as well. Having assumed this risk, the [Minister] can hardly complain when it is faced with a penalty where its interpretation of the [Agreement] is found to be wrong. (Emphasis added.) 25. Those paragraphs are confusing. 26. Paragraphs 57, 59 and 83(v) suggest his Honour made a finding that the Minister engaged in a knowing breach of the type identified in [22] above. Paragraph 59 in particular is a finding of a knowing and intentional breach of that type (despite the fact that it is not identified who has such knowledge and when they had such knowledge). 27. However, [58], [60], [65] and [73]–[75] suggest the ‘deliberate’ nature of the contravention was that the Minister knew there was ambiguity or a difference of opinion or a dispute as to the application of the Agreement, and the Minister made a deliberate choice not to resolve that ambiguity through a s 46 application, and therefore the Minister took the risk of engaging in contravening conduct. 28. Given the quantum of penalty imposed, and the language used in [59] of the judgment, it is fair to assume that the Industrial Magistrate made a finding of a knowing and intentional contravention. 29. In any event, whichever was the true factual finding, neither finding was available on the evidence. To explain why, one needs to consider the evidence led at trial which was the only evidence before the Court. Evidence Guidance Note 30. The Superintendent’s Guidance Note was produced by the parties as Agreed Document 3. That document was dated 28 September 2022. There was no evidence with respect to what, if any, policy pre-dated that Note. Nor was there evidence as to why that Note was published, save for Mr Vose’s evidence that it was to provide ‘superintendent’s with advice’, and save for what was inherent in the Note, namely that it ‘provides advice’. For example, no evidence was led to the effect that such Note was published in response to there being a dispute or difference of opinion in respect of whether Principal Officers Monday to Friday were required to work on public holidays, and if so, what rate of pay they were entitled to. Ms Harvey 31. Ms Harvey provided a witness statement. She had been employed in the prison officer ranks since 2006 and was appointed a Principal Officer at Karnet Prison in 2020. Her evidence was she was told in 2020 she would be ‘permitted’ public holidays off and she further stated that she was ‘usually permitted’ to be away from work on public holidays’ and she received her ordinary pay for such public holidays when she did not work. She was told in August 2022 she would be expected to work on public holidays going forward. Ms Harvey gave evidence about the Memorial Day public holiday – however that could not be used to establish any particular practice because, as Ms Harvey stated, that date was viewed differently to other public holidays. 32. Ms Harvey’s evidence established she was required to work on some public holidays (because she was only ‘usually permitted’) to be away. Ms Harvey gave no evidence with respect to the pay practice when she did work public holidays prior to 26 September 2022. The absence of evidence on this point cannot be used to make a positive finding that she was paid overtime on those dates. 33. Ms Harvey’s evidence as to the Minister’s practice with respect to any requirement for Principal Officers Monday to Friday to work on a public holiday, and the rate they would be paid if so required, is completely ambiguous. 34. Ms Harvey says she was ‘usually’ permitted not to work, but that does not amount to evidence that she was not required to work, nor does it say anything about her rate of pay when she did work. Being ‘permitted’ not to work is not the same as being entitled not to work. Indeed, the language used in her statement leads to the more likely inference that she was not entitled not to work on such days. Rather, she was simply permitted not to. Mr Vose 35. Mr Vose provided a statement. At the time of providing his statement he was Acting Superintendent of Karnet Prison Farm. Around 2.5 years prior to providing his statement, Mr Vose informally raised with Ms Harvey that it was his understanding that for all ranks of prison officers as part of their annualised salary they were required to work on public holidays. 36. Mr Vose gave evidence that from his experience both as a Union delegate and a member of the Union’s Executive, it had never been the understanding that the Principal Officer position working Monday to Friday would be absent and be paid on a public holiday. He was not challenged on this evidence and the Minister was never put on notice of a challenge to this evidence either by the Industrial Magistrate or the Union. 37. The effect of Mr Vose’s evidence with respect to the Guidance Note was that it clarified the Department’s position, not that it changed the position or practice. He was not challenged on this evidence. Factual errors 38. There was simply no evidence before the Court as to the pay practice prior to 26 September 2022 when a Principal Officer Monday to Friday worked on public holiday. 39. Nor was there any evidence before the Court of a dispute or issue raised by the Union or any other person with respect to the pay practice when a Principal Officer Monday to Friday worked on public holiday. 40. Noting that the dispute at first instance was not whether such an officer could be directed to work on a public holiday, the dispute was whether they were entitled to overtime rates when so directed. 41. To the extent that Ms Harvey gave evidence as to being ‘usually’ ‘permitted’ to have public holidays off, that evidence does not establish on the balance of probabilities that there was historically a different, or competing, constructions given to the relevant clauses in the Agreement. 42. The lack of foundation for the Industrial Magistrate’s finding are made more pronounced when one appreciates the principles in [Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw)] applied to his findings. One cannot make serious factual findings (a knowing and deliberate contravention or knowingly taking the risk of a contravention) based on inexact proofs, indefinite testimony or indirect inferences, and a lack of identification as to who had such knowledge and when they had such knowledge. It was not possible to find Mr Vose has such knowledge given his evidence which was not challenged. It is unknown who the Industrial Magistrate had in mind with respect to the relevant knowledge and deliberate choice. 43. The relevant circumstances then are as follows: (a) the constructional question was complex and ultimately required reference to historical instruments to resolve ambiguity. Such was the complexity and uncertainty of the task that even the minority reasons in the Full Bench (which were correct in conclusion) did not take the same pathway to reach the construction arrived at by the Industrial Appeal Court; (b) two members of this Full Bench considered there was no ambiguity and the Minister’s construction was correct which is a basis to find that was not an unreasonable view to hold, even if ultimately wrong as a matter of law; (c) there was no evidence before the Court of any disputation with respect to the pay practice when a Principal Officer Monday to Friday worked on public holiday [sic]; (d) there was no evidence before the Court of any changed pay practice in that regard; and (e) the relevant clauses in the Agreement were in substantially the same terms since 2013 and there was no evidence before the Court of disputation during that period. 44. In those circumstances, there was no evidential foundation to find that the Minister: (a) knowingly and intentionally contravened the Agreement and thereby knowingly deprived Ms Harvey of pay she was entitled to; (b) changed his interpretation prior to the contravention, or at all; or (c) knew that the path he chose in applying his construction ‘knowingly exposed [him] to risk’ of a contravention. 45. If it was not unreasonable to take the view there was no ambiguity, and if there is no evidence of disputation in respect of the relevant clauses, it cannot be said that the Minister knew, or ought reasonably to have known, that he was taking a risk by interpreting the Agreement in a particular way. It also cannot be said that in those circumstances he ought to have brought s 46 proceedings. 46. Indeed, bringing s 46 proceedings where there is no disputation or believed ambiguity would arguably be an abuse of process. It would at least be a waste of the parties’ and Commission’s resources which is contrary to the public interest. 47. There was therefore no evidential basis for the critical finding supporting the imposition of the penalty imposed and the imposition of a penalty amounting to just under 25% of the maximum penalty where those factual findings cannot be made, and in the circumstances referred to at [43] above is manifestly excessive. 48. As Rangiah J observed in Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 [(Hail Creek)] [15], ‘where a contravention of a civil penalty provision has arisen from the contravener’s honest and reasonable, but erroneous, construction of a relevant instrument, that is a powerful factor favouring the exercise of the discretion to decline to impose any penalty, or to limit the amount of any penalty’. 49. This is not a case where it can be established that the Minister ‘took the odds’. 50. Given the purpose of imposing a penalty is deterrence, the circumstances referred to at [43] and [45] powerfully support the imposition of no penalty at all. The Union’s remittal-hearing submissions filed on 16 March 2026 (at [19(e)] above), states: (footnotes omitted) Ground 7 – body corporate penalty regime 13. The Union refers to: i) paragraphs [40] to [46] of its written submissions dated 19 June 2024 regarding the proper characterisation of the Minister as having the character of a body corporate; and ii) Senior Commissioner [Cosentino’s] reasons in the Full Bench Decision at [148] to [169]. The Union adopts these reasons. In summary, the Minister is not a body corporate but has a corporate character; the Minister acted as an agent of, or on behalf of the State, therefore the Minister is treated as ‘a case of a body corporate’ under section 83(4A) of the IR Act. [Patole] 14. The State is a body corporate, for which the penalty regime under the IR Act applies. 15. In relation to public authorities of the State, to be regarded as a ‘case of a body corporate’ under section 83(4A) of the IR Act, the actions of a public authority must be performed in its capacity as an agent for the State to attract liability under the body corporate penalty regime. 16. Patole provides support for the position that a public authority must be appointed to act ‘for and on behalf of’ the State for its actions to be regarded as the State’s actions (and be amenable to judicial review). 17. Patole concerned whether an impugned decision of a public officer acting as delegate of a public authority to enter an employment contract with an individual on behalf of the State was amenable to judicial review as an exercise of executive government power. As the relevant public authority was appointed to act ‘for and behalf of’ the State by virtue of legislation, agency was established. Effect of Patole on the present appeal i) Was the Minister appointed to act ‘for and on behalf of’ the State? 18. The present appeal concerns a decision by the Minister regarding pay of an employee in its capacity of an ‘employing authority’ of the prison officer. The question is whether the Minister was appointed to act ‘for and on behalf of’ the State in its decision to pay PO Harvey ordinary rates of pay for working on a public holiday, for the decision to attract liability on the State. 19. The Minister is an ‘employing authority’ under section 5 of the [PSM Act] and a ‘public authority’ under the IR Act. The Minister employs prison officers in their capacity of holder of a principal executive office of the government under section 43(2) of the Constitution Acts Amendment Act 1899 (WA). ii) As a matter of statutory construction, is it implicit that the Minister was appointed to act ‘for and on behalf of’ the State? 20. In this present case, the IR Act and the Prisons Act do not specify that the Minister is appointed to act ‘for and on behalf of the State’. It is then necessary to determine whether it is implicit by virtue of the Prisons Act that the Minister, in not paying overtime to PO Harvey, was acting on behalf of the State. 21. The majority in Patole considered that the concept of a State generally comprehends agencies which discharge its functions. Similarly, in the circumstances of this case, the Prisons Act provides: i) Section 13(1); the Minister ‘may engage prison officers as employees’; and the prisons offers [sic] ‘shall be employed on such terms and conditions as the Minister considers, on the recommendation of the Public Sector Commissioner’; and ii) Section 13(2); prison officers must swear an oath to serve the State as a prison officer. 22. Further, the Prisons Act contemplates the Chief Executive Officer and Minister entering into contracts for the management of prisons on behalf of the State: i) Section 15B provides that the chief executive officer ‘may, for and on behalf of the State of Western Australia, enter into a contract with a person to provide prison services for the State’; and ii) Section 15X provides that the chief executive officer, with the Minister’s approval, may on behalf of the State terminate or suspend a contract. 23. Section 111 of the Prisons Act provides that the Minister cannot be personally liable for non-malicious conduct and conduct with reasonable cause, committed under the Prisons Act. iii) Is the Minister appointed to act in their personal capacity? 24. Finally, it cannot be sensibly suggested that the Minister was acting in their personal capacity. There was no evidence to suggest such a position, and it simply defies logic and common sense. The Minister was not ‘on a frolic of their own’. Clearly the Minister was acting on behalf of the State; not for themselves or in their own personal capacity. As stated at [42] of the written submissions of the Union dated 19 June 2024, it would be absurd to suggest that the Minister would continue to personally employ prison officers if/when they (the Minister) ceased to hold that Ministerial office or portfolio. Similarly, prison officers who are employed by a particular Minister in their position, simply continue in their employment if another individual Minister is appointed to replace the employing Minister who initially engaged the prison office in their employment. 25. Further, a finding that the Minister is excluded from liability under section 83(4A) of the IR Act and under s 111 of the Prisons Act, is contrary to the intention of Parliament to have a penalty regime within the IR Act to deter employers from engaging in conduct prohibited by the IR Act. Such a finding would lead to an illogical result whereby the Minister is effectively exempt from any meaningful penalty (because the available penalty would be so low). A similar view, in relation to employment obligations imposed on the Commonwealth, was expressed by Madgwick J in [Coochey v Commonwealth of Australia [2005] FCA 1165 (Coochey), especially at [57]]. 26. It therefore follows that the Minister was not an ‘individual’ for the purposes of s 83(4A)(a) of the IR Act. 27. Having regard to all of the above factors, the Minister cannot be regarded as ‘an individual’ (s 83(4A)(b) of the IR Act). It must be concluded that the Minister is to be treated as ‘a case of a body corporate’ under section 83(4A)(a) of the IR Act. iv) Effect of the Union bringing the claim against the Minister and not the State 28. At [13] to [15] of their Submissions filed on 10 March 2026 (10 March 2026 Submissions) the Minister submits that as the Union sued the Minister (who is the named party to the [Agreement]), not the State, the outcome must be that an individual penalty applies. 29. As stated above at [13(i)], the Union repeats its earlier submissions at paragraphs [40] to [46] of its written submissions dated 19 June 2024. 30. Further, in this matter, the Union claimed a contravention of the [Agreement]. An application of this type, for enforcement, can only be brought pursuant to section 83 of the IR Act. This section provides for an application to be brought against ‘a person…(who) contravenes an entitlement provision…’ (section 83(1)). 31. In addition, sub-sections 83(2) and (2A) of the IR Act allow for other parties to be ‘taken to contravene’ the provision if they effectively are an accessory to the primary contravention. But the effect of these sub-sections is that an accessory contravention can only arise if there was a primary contravention. Another party (such as the Chief Executive Officer) could not be held to be an accessory, unless the party to the [Agreement], with the direct obligation to comply (namely, the Minister) was found to have been in contravention. 32. Clearly, as the named party to the [Agreement], the direct or primary obligation to give effect to and comply with it rested with the Minister. Therefore, any prosecution alleging a breach had to be brought against the Minister. There was no meaningful choice or ‘election’ to be made by the Union in bringing the claim against the Minister. For the reasons described above, the Minister was not acting in his/her personal capacity. 33. At [15] of the 10 March 2026 Submissions, the Minister refers to and relies on [Frearson]. The relevant conclusion appearing (very briefly) at page 216 of that decision appears to have been reached without the benefit of considered submissions on the matter, and in the context of a different legislative regime. The lack of detailed consideration of the issue should be contrasted with the careful analysis in the various cases discussed above, including Patole. Frearson should be distinguished and otherwise discarded as being not relevant to or of assistance in this matter. Conclusion 34. For the reasons outlined above, the Minister was acting ‘for and on behalf of the State’ in its decision to pay PO Harvey ordinary rates of pay for working on a public holiday. The corporate penalty regime applies to the Minister as ‘a case of a body corporate’ under section 83A [sic] of the IR Act. Ground 8 – whether the penalty imposed was manifestly excessive 35. The Union refers to its submissions regarding penalty filed on 20 November 2023 in M145 of 2022 before the Industrial Magistrates Court. Specific and general deterrence 36. The well-known and generally accepted purpose served by civil penalties was described by Katzmann J in Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 [(FWO v Grouped)] at [388] as follows: In contrast to the criminal law, however, where, in sentencing, retribution and rehabilitation are also relevant, the primary, if not only, purpose of a civil penalty is to promote the public interest in compliance with the law. This is achieved by imposing penalties that that are sufficiently high to deter the wrongdoer from engaging in similar conduct in the future (specific deterrence) and to deter others who might be tempted to contravene (general deterrence)… 37. Weighing up the considerations regarding penalty in [Callan] at [90-2], and focusing primarily on specific and general deterrence, a penalty of $15,000 is reasonable and not excessive, and with reference to recent decisions regarding penalty against a body corporate. Penalty was on the lower end of the scale 38. It is also significant that the penalty of $15,000 compared to the maximum penalty of $65 000 (at the applicable time) represents about 23% of the maximum. In [Callan], it was observed that a penalty at the ‘lower end of the scale’ was ‘in the range of 10% to 25% of the maximum’. The Union suggests that it would take quite extreme circumstances, or a grave and fundamental error at first instance, to justify the Full Bench reducing the penalty imposed at first instance, when the penalty already sits at the lower end of the scale. Such circumstances clearly do not arise here. Minister has applied a flawed approach to its assessment of penalty 39. The Minister at [21] to [42] of the 10 March 2026 Submissions, attempts to dissect in painstaking detail some of the evidentiary analysis of the Industrial Magistrate that the Minister asserts led to the penalty outcome, and criticise it line by line. The attack is aimed at the conclusion of the Industrial Magistrate recorded at [83 (v)] of the Penalty Decision, the finding of some ‘deliberate choice’. 40. Firstly, this lengthy analysis seeks to criticise and undermine the basis for what was identified at [83] of the Penalty Decision as only one of the five circumstances supporting such a penalty. This fifth circumstance was not expressed to be more important than the other four circumstances identified in that paragraph. There is no basis for the assertion by the Minister at [21] of the 10 March 2026 Submissions that this one matter was ‘the critical factor relied upon…’. This was not how that matter was described or categorised in the Penalty Decision. A careful reading of the Penalty Decision does not support such a submission. 41. Even then, the five issues were not expressed as an exclusive list of relevant matters. The Industrial Magistrate, having carefully considered a wide range of matters in the earlier parts of the Penalty Decision, appropriately identified at [83] that he had ‘regard to all the circumstances of this matter including the following…’ (emphasis added), and then listed the five matters referred to. 42. Further, this approach of the Minister is contrary to the well-accepted position that determining an appropriate penalty is a broad discretionary exercise. There can never be a ‘rigid catalogue of matters for attention’. Regard should be had to relevant considerations, but determining penalty is not a mechanical or ‘box ticking’ exercise. It is clear that ‘the role of instinctive synthesis in the judicial sentencing process’ is fundamental. 43. Accordingly, even if the Minister was correct in some or all of their criticisms of the specific factual conclusions said to be relied on by the Industrial Magistrate at [44] of the 10 March 2026 Submissions (which the Union contests), this was but one part of the overall instinctive synthesis applied. It cannot support a conclusion that the Full Bench should interfere with the decision below, when the penalty was already at the lower end of the scale, and further reduce it. The Industrial Magistrates’ error in assuming corrective action was taken by the Minister 44. Further, regarding whether the Minister has taken corrective action, shown contrition, and cooperation, the Industrial Magistrate in the Penalty Decision at [69] incorrectly assumed that the Minister had taken corrective action by paying PO Harvey overtime since [Western Australian Prison Officer’ Union of Workers v Minister for Corrective Service [2023] WAIRC 00725 (Substantive Decision)], in his assessment of penalty. This is not contested by the Minister. As such the penalty imposed by the Industrial Magistrate should be at or higher than $15,000. Conclusion 45. A penalty of $15,000 or more is reasonable in the circumstances, and not manifestly excessive. Union’s appeal ground 2 in FBA 13 of 2024 Ground 2 of the Union’s appeal in FBA 13 of 2024, appeals the penalty imposed on the ground that his Honour erred in law, by finding that the Minister had taken corrective action and applying a discount for the corrective action. The parties’ contentions are contained in the following written submissions: The Union’s submissions filed on 10 June 2024. The Union’s remittal-hearing submissions filed on 10 March 2026. The Minister’s remittal-hearing submissions filed on 16 March 2026. The Union’s submissions filed on 10 June 2024 (at [26(a)] above), states: (footnotes omitted) 35. Amended ground 2 is that His Honour erred at law at [82] of the Penalty Decision when he determined the most appropriate amount of penalty was $15,000. 36. Paragraph [82] is the first paragraph under heading ‘Penalty to be imposed’ and it is where his Honour says: For the reasons outlined in the preceding paragraphs, I have determined that a fine of $15,000 to be the most appropriate disposition in this case. 37. Those ‘preceding paragraphs’ must be those in relation to His Honour’s consideration as to what quantum penalty should be imposed, which commences under the heading ‘Consideration’ at paragraph [43] and goes to paragraph [81]. 38. That includes the consideration as to penalty at paragraph [69] of the Penalty Decision. It is at paragraph [69] that His Honour made an erroneous assumption based on correspondence dated 31 January 2024 that the Minister had taken ‘corrective action’, had ‘implemented the decision’, and paid Ms Harvey’s overtime. Paragraph [69] in full is as follows: In relation to corrective action, counsel for the [Minister] in correspondence to the Court dated 31 January 2024 advised the Court that it has since implemented the decision. I have assumed this means the [Minister] has since paid Ms Harvey’s overtime which I have had regard to in mitigation. [emphasis added]. 39. This assumption about corrective action was erroneous because: a. The 31 January 2024 correspondence was not part of the hearing in the case. b. The [Union] was not afforded an opportunity to respond to that correspondence of 31 January 2024 and was therefore denied procedural fairness in that regard. c. There was no evidence in the hearing that the Minister had implemented the Decision and paid Ms Harvey’s overtime. 40. There was nothing that could lead His Honour to assume or determine that corrective action had been taken by the Minister prior to His Honour’s disposition of the case, yet His Honour, with reference to the correspondence of 31 January 2024 and with the erroneous mindset that corrective action had been taken determined therefore that the Minister had mitigated his circumstances and thus His Honour determined to impose a penalty in the amount of $15,000. 41. Notably also, it can be said that his Honour also erroneously took this 31 January 2024 correspondence into account when determining the Minister had a lack of contrition up until that point. 42. It was correct at law for His Honour to consider any mitigation such as corrective action and contrition as being factors in determining the quantum of penalty, but the Union submits that had His Honour not been lead into error by considering the 31 January 2024 correspondence which went to corrective action and contrition, His Honour’s quantum of penalty would have been different, it would have been higher. The 31 January 2024 correspondence was one that had a material difference to the amount of penalty. It should not have been considered by His Honour in his disposition of the penalty decision. 43. Put simply, had the matter have been disposed of, and quantum of penalty determined, with no regard to the 31 January 2024 correspondence, being that there was no implementation of the decision, there was no corrective action, and there was no contrition, i.e. no mitigation in that regard, a different penalty amount would have been imposed by His Honour. Logically, a higher one. The Union’s remittal-hearing submissions filed on 10 March 2026 (at [26(b)] above), states: (footnotes omitted) 2. Ground 2 of the Union’s amended grounds of cross appeal concern penalty as follows: i) Ground 2: His Honour erred in law in determining at [82], for reasons outlined in His Honour’s ‘preceding paragraphs’, that a fine of $15,000 is the most appropriate disposition in the case. 3. The Union refers to and repeats paragraphs [35] to [43] its written submissions dated 10 June 2024. 4. In summary, the Industrial Magistrate in the [Penalty Decision], incorrectly assumed that corrective action was taken by the Minister; and that Principal Officer Harvey (PO Harvey) was paid overtime since [the Substantive Decision]. 5. Further, the Union submits that there was no admissible evidence to support such a finding. 6. To the extent that the Industrial Magistrate accepted the correspondence from the Minister of 31 January 2024, whether it was considered to be evidence, a submission, or something else, the Union was denied procedural fairness as it was not given any opportunity to respond to the correspondence. 7. Each of these matters were material factors contributing to the final decision of the Industrial Magistrate which was, in this regard, affected by a significant error. 8. The Minister does [sic] contest that the Industrial Magistrate erred in considering corrective action taken by the Minister when there was no evidence of this before him. Conclusion 9. For the reasons outlined above and in the Union’s submissions filed on 10 June 2024, a penalty of higher than $15,000 should be imposed in the circumstances. The Minister’s remittal-hearing submissions filed on 16 March 2026 (at [26(c)] above), states: (footnotes omitted) 1. The Minister accepts there was no evidence before the Court to the effect that the Minister had paid Principal Officer Harvey overtime since the liability decision was issued at first instance. 2. There was an email from counsel for the Minister, in response to the Union’s request to adjourn the hearing, to the effect that the Minister would be prejudiced by an adjournment because the decision had been implemented. 3. The Court construed that to mean Principal Officer Harvey had been paid. In the context in which the email was framed, the observation was not with respect to whether Principal Officer Harvey had been paid, as no prejudice would arise from that fact, it was in relation to the Minister changing his practice with respect to Principal Officers working on public holidays. The delay on issuing a penalty decision would delay the Minister’s ability to appeal such a decision and therefore prejudice the Minister’s position with respect to public holidays occurring in the meantime. 4. The Minister therefore accepts the Court misconstrued the email, misconstruing the email was not material to the decision as to penalty for three reasons. 5. First, the penalty imposed was in any event manifestly excessive for the reasons set out in the Minister’s appeal. 6. Secondly, his Honour considered the corrective action he identified ‘cancelled out’ the lack of contrition (see [72]). However, for the reasons set out in the Minister’s submissions on remittal the finding in respect of ‘lack of contrition’ was misconceived because it relied upon an erroneous finding that the Minister had changed his view with respect to the construction of the Agreement (see [71]). 7. Thirdly, the alleged corrective action did not form part of the Industrial Magistrate’s reasons for imposing the penalty (see [83] of the reasons). 8. The Minister’s appeal should be allowed, and the reconsideration of penalty should be approached without any reference to corrective action of the type referred to by the Industrial Magistrate at [69] of his reasons because neither party at first instance sought to make submissions or give evidence of such matters. The remittal hearing At the remittal hearing, the Minister relied upon his written submissions, and said the following in response to the Union’s submissions: There is no dispute that the State is the legal employer of prison officers under the Prisons Act. The dispute lies in the effect that has on the maximum penalty. The Minister’s case is that one can only look to the party named in the proceedings to determine the maximum penalty. In the present case, the Union alleged the Minister contravened an entitlement provision and the Court found as much. The penalty is then imposed on the person found to be the contravener. In this case, the Minister, not being constituted a corporate entity, the maximum individual penalty applies. The Union’s contention that it had no choice but to sue the Minister as the party named in the Agreement is incorrect. In Coochey [55], the Commonwealth outlined that it was correctly sued in circumstances where ministers of the State who are not corporate entities were named as parties to a federal industrial agreement. Likewise, the Union could have sued the State as the contravener in this matter, applying the IR Act provisions mutatis mutandis. Not having sued the State but sued the Minister, the individual penalty applies: Frearson; Construction, Forestry, Mining and Energy Union v State of Victoria (No 2) [2013] FCA 1034 [83] (CFMEU) citing Frearson without criticism. While there is no in-depth analysis in Frearson and CFMEU as to whether the outcome in those cases is correct, the Minister contends the outcome in Frearson is correct because an individual person was the person who was sued and found to be the contravener. Furthermore, it is accepted that the Minister acts as agent for the State. It therefore follows that the State is a party to the Agreement, because the Minister is only entering into the Agreement as agent of the State, such that the Union could have sued the State. In addition, while s 41 of the IR Act provides that an industrial agreement extends to and binds an employer who is a party to the industrial agreement, the parties agree that the State is the legal employer of prison officers, and Coochey [55] explains why the Commonwealth was properly sued despite ministers of the State being named as parties to the agreement. Accordingly, the Minister says the State could have been, and should have been, sued. In fact, in damaging action claims brought in the Industrial Magistrate Court under the IR Act, the State has been named as the employer of employees of the State. In relation to ground 8, the Union says the Minister is wrong to suggest that the fifth factor identified in [83] of the Penalty Decision was a critical factor relied upon by the Industrial Magistrate when determining the penalty. The Minister does not need to establish that was a critical factor; the Minister simply needs to establish that was a factor relied upon and that the factual finding was erroneous. If that is established, then there is an error in the exercise of discretion and it ought to be set aside and the discretion re-exercised. In any event, it is open for the Full Bench to conclude that factor was the key factor in setting the penalty, because out of the five factors referred to in [83] of the Penalty Decision, it is the only factor which was an aggravating factor. This is because: The first factor (the outcome in the decision has at least clarified what entitlements Principal Officers like Ms Harvey are entitled to receive under the Agreement) is either a neutral factor, or weighs in favour of a lower penalty. It is not an aggravating factor. The second factor (while the breach falls at the lower end of the range of contravening behaviour, Ms Harvey was deliberately deprived of an entitlement that she would otherwise have been entitled to receive) is the same as the fifth factor in its reference to the deliberate nature of the deprivation. However, the Industrial Magistrate’s findings that the breach falls at the lower end of the range, means this second factor is not an aggravating factor, and demonstrates that the breach is at the lower end of the scale. The third factor (the breach occurred before the issuance of the WAPOU Caution decision and so the issuance of the caution to the Minister in that matter is not relevant to the penalty to be imposed), is not a factor at all. The Industrial Magistrate is saying that he will not take into account the caution because it is not relevant. The fourth factor (the size and scale of the Minister’s business is such that there were alternatives to clarify its interpretation of the Agreement instead of engaging in contravening conduct) refers to [64]–[66] of the Penalty Decision, where the Industrial Magistrate deals with the scale and size of the business, and is completely tied up with the mental element of the contravention, because the Industrial Magistrate saw the size and scale of the business as being linked to whether the Minister had the resources to have dealt with the issue by other avenues. However, this relies upon the erroneous assumption that the Minister knew or ought to reasonably have known there were competing constructions. Furthermore, the Industrial Magistrate relies upon the size of the business as being relevant for the size of the penalty to deter future conduct. However, the need for deterrence, or at least the extent of the need for deterrence, is inherently linked to the mental element that the Industrial Magistrate found to be established. Accordingly, the fifth factor (the Minister made a deliberate choice to engage in contravening behaviour and that he should be deterred from repeating conduct of this kind), being the alleged deliberate nature of the contravention, is the critical factor relied upon because it is the only factor that could be said to aggravate the wrongdoing. If the deliberate nature of the contravention is not properly available to be found on the evidence, then the error is made out and the discretion miscarried. As for the Union’s appeal, the Minister accepts that the Industrial Magistrate did not have evidence before him to demonstrate that corrective action had occurred. While the Minister accepts there is no evidence that corrective action was taken, there is also no evidence that corrective action was not taken, as neither party addressed the issue of corrective action in their penalty submissions. The Minister’s response to the Union’s appeal is essentially tied up with ground 8 of the Minister’s appeal; the Minister says there was an error in the exercise of discretion, therefore, the Penalty Decision should be set aside and the Full Bench ought to determine the proper penalty to apply based on the evidence. At the remittal hearing, the Union relied upon its written submissions, and said the following in response to the Minister’s submissions: Patole is not determinative but supports the broader position that the State acts through instrumentalities, agencies and other entities, which can have a separate corporate status or character. Patole supports the Union’s position that the Minister is a party effectively as an agent on behalf of the State, who acts for and on behalf of the State, and for the purposes of s 83(4A) should be regarded as having the status of a body corporate. The Union maintains their criticism of Frearson and the federal cases relied upon by the Minister concerning contraventions under the FW Act, which are of limited assistance to the Full Bench. Section 83(4)(a)(ii) states that the establishment of a contravention enlivens the power to order a pecuniary penalty, either under s 83(4A)(a) in the case of a body corporate, or under s 83(4A)(b) in the case of an individual. There are no other alternatives. Accordingly, the Minister must be categorised as either a body corporate or as an individual. The Union says the only logical categorisation is that the Minister is ‘in the case of a body corporate’. If the Minister is personally responsible as an individual, and therefore the party to be fined, it leads to absurd consequences. Such as, a prison officer who is employed by the Minister of the day, but that Minister leaves and a different Minister is sworn in, would mean the prison officer remains employed by the individual who is now no longer the Minister. Therefore, it is logical that the prison officer is an employee of the office of the Minister, such that the prison officer’s employment continues despite the individual Minister changing. In response to the Minister’s contentions of the Industrial Magistrate’s reference to the ‘deliberate choice’ at [83] of the Penalty Decision, the Union relies upon the well-established principles about penalty, which is that it is not a mathematical exercise, but a matter of ‘instinctive synthesis’. His Honour had ‘regard to all circumstances of this matter including the following’ and then itemised the five subcategories at [83], demonstrating that the Industrial Magistrate took a broad instinctive synthesis approach, having regard to a wide range of factors that he canvassed in the Penalty Decision. However, even if the Minister is right regarding the fifth factor in [83] as being the essential reasoning of the Industrial Magistrate, the fifth factor is but one of a range of factors that the Industrial Magistrate overtly had regard to, and it is not correct to suggest that it was the critical factor. In terms of the quantum, it is common ground that the Industrial Magistrate in expressing the view that corrective action had been taken was in error. This factor suggested a lower penalty. Therefore, the penalty should either be increased or at the very least maintained at the level that was determined by the Industrial Magistrate. The Union relies on Callan which observes that a penalty of up to 25% of the maximum is regarded as being a low penalty. Accordingly, the penalty imposed on the Minister of 23% of the maximum, is already a low penalty and should not be reduced further. Consideration Ground 7 of FBA 10 of 2024 Ground 7 of FBA 10 of 2024 contends that the Industrial Magistrate erred in setting the penalty by reference to the maximum payable ‘in the case of a body corporate’ under s 83(4A)(a), rather than the maximum payable ‘in the case of an individual’ under s 83(4A)(b). Sections 83(1A), (1), (4) and (4A) of the IR Act (version 16-j0-00, current from 1 July 2022 to 12 November 2024), state: (emphasis added) 83. Enforcing awards etc. (1A) In this section – contravene, in relation to an entitlement provision, includes fail to comply with that provision. Subject to this Act, if a person contravenes an entitlement provision, any of the following may apply in the prescribed manner to an industrial magistrate’s court for the enforcement of the provision – (a) the Registrar or a deputy registrar; (b) an industrial inspector; (c) in the case of an award or industrial agreement, any organisation or association named as a party to it; (d) in the case of an award, industrial agreement or order, an employer bound by it; (e) a person – (i) who is a party to the award, agreement or order or to whom the award, agreement or order applies; or (ii) to whom the entitlement provision applies under the LSL Act or MCE Act; (f) if an employee under an employer-employee agreement is a represented person, a representative acting on the employee’s behalf. … (4) On the hearing of an application under subsection (1) the industrial magistrate’s court may, by order – (a) if the contravention is proved – (i) issue a caution; or (ii) impose a pecuniary penalty in accordance with subsection (4A); or (b) dismiss the application. (4A) The pecuniary penalty may be an amount not exceeding – (a) in the case of a body corporate – (i) if the contravention is a serious contravention – $650 000; or (ii) if the contravention is not a serious contravention – $65 000; and (b) in the case of an individual – (i) if the contravention is a serious contravention – $130 000; or (ii) if the contravention is not a serious contravention – $13 000. In determining this ground of appeal, we have had regard to the following provisions of the Interpretation Act 1984 (WA) (Interpretation Act): Section 3(1), which provides that the provisions of the Interpretation Act apply to every written law, unless the written law expressly provides to the contrary, or contains an intention or object that is inconsistent with the application of the provisions of the Interpretation Act. Section 5, which provides that in the Interpretation Act ‘and every other written law’: (i) person or any word or expression descriptive of a person includes a public body, company, or association or body of persons, corporate or unincorporate. (ii) individual means a natural person. Section 18, which provides that in the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. Section 83(4A) is a maximum pecuniary penalty provision. Its purpose is to fix the maximum pecuniary penalty by reference to whether the person, that an industrial magistrate finds has contravened an entitlement provision (s 83(1)), is a body corporate or an individual. The maximum pecuniary penalty an industrial magistrate may impose, turns on whether the contravener is a body corporate or an individual. The maximum pecuniary penalty for a body corporate is five times the maximum pecuniary penalty for an individual. We agree with the Union that s 83(4A) draws a binary distinction. There is no third or hybrid category. Under s 83(4A), a contravener is either a body corporate or an individual. Neither the IR Act nor the Interpretation Act defines a ‘body corporate’. In ordinary usage, a body corporate is a legal entity that has a legal personality, other than a natural person, and includes a corporation sole. Applying the provisions of the Interpretation Act at [34] above, we consider that s 83(4A) must be applied on its terms and operates by reference to the contravener’s legal status. As an ‘individual’ is defined by s 5 of the Interpretation Act to be a natural person, if the contravener is a natural person, then the maximum pecuniary penalty under s 83(4A)(b) applies. In this case, the Minister is a natural person, and therefore the maximum pecuniary penalty under s 83(4A)(b) applies. We are not persuaded by the Union’s argument that s 83(4A) operates other than in accordance with the Minister’s legal status. Specifically, we are not persuaded that s 83(4A) operates in accordance with the capacity in which the Minister may have acted. Patole does not assist the Union on the construction of s 83(4A). Patole concerned whether a public sector employment decision was amenable to judicial review as an exercise of State executive power. Patole did not concern the construction of a civil penalty provision which fixes maximum penalties by reference to whether the contravener is a body corporate or an individual. The fact that the Minister’s conduct may be characterised as conduct undertaken for and on behalf of the State does not alter the Minister’s legal status for the purposes of s 83(4A). The Union accepts that the Minister is not a body corporate, but argues that the Minister has a corporate character (see [13(ii)] of the Union’s remittal-hearing submissions at [24] above), and should be treated as a ‘case of a body corporate’ because the Minister acted as an agent of, or on behalf of, the State. We do not accept that submission. It would require s 83(4A)(a) to be read as applying not only to a body corporate, but extending to an individual office-holder acting as agent for, or on behalf of, a body corporate. There is no textual basis for that addition. There is no dispute that the Minister is not constituted a body corporate under the Prisons Act, the PSM Act, or by any other Act identified to us. The contrast with s 214(1) of the School Education Act 1999 (WA), which expressly constitutes the Minister for Education ‘a body corporate with the name Minister for Education’, is instructive. Had the Parliament intended the Minister to have the legal status of a body corporate, it could have said so expressly. It did not. We accept that, when engaging prison officers under s 13 of the Prisons Act, the Minister acts as agent for the State. However, that conclusion does not answer the different question posed by s 83(4A), namely the legal status of the contravener against whom the penalty is imposed. Notwithstanding the Minister acting as an agent for the State, in the absence of any statute constituting the Minister as a body corporate, the Minister remains an individual for the purposes of s 83(4A). The decisive point is identified in Frearson, 216: ‘Even though the respondent is sued in his official capacity, he is nevertheless an individual’. We accept that Frearson did not involve any analysis of this position. However, Frearson has not been doubted in any case to which we were taken, and was applied in CFMEU [83]: (emphasis added) Overwhelmingly, it is conduct taken in the capacity of an employer that is capable of exposing the Crown or its agencies to contravention of a civil remedy provision under the FW Act. Public sector employees may not be directly employed by the Crown. Often they are employed by a statutory corporation or by individuals designated by statute to be their employer on behalf of the Crown. An example of the latter is provided by s 20 of the Public Administration Act 2004 (Vic) which designates ‘a public service body Head’ to have all the rights, powers, authorities and duties of an employer in respect of the employees in the Department or public service body which that person is charged to manage. A Minister may also be the subject of such a designation in respect of the public servants in the Department assigned to the Minister. That was the position in Tasmania in relation to the employment of government school teachers as Heerey J recorded in [Frearson]. In Frearson Heerey J applied a predecessor provision to s 546(2) (s 178(4)(a) of the WR Act) to impose a penalty on the relevant Minister as an individual (at 216). The Union contended that the Minister, as the named party to the Agreement, was the only person who could have been sued. Furthermore, that the only sensible categorisation under s 83(4A) is for the Minister to be treated as ‘a case of a body corporate’. We disagree, for the following reasons. Firstly, we acknowledge the Union’s submission that the Minister was the named party to the Agreement and that the Union therefore proceeded against the Minister as the party with the direct obligation to comply with the Agreement. However, once the proceedings were instituted against the Minister, and the contravention is found against the Minister, s 83(4A) fixes the applicable maximum pecuniary penalty by reference to the legal status of that contravener. The fact that the Minister may be acting as agent for the State does not convert the Minister into a body corporate. Secondly, the premise that the Minister was the only available respondent is doubtful. As the Federal Court has accepted in respect of the Workplace Relations Act 1996 (Cth) (WR Act), where the Commonwealth is the employer, and a Minister acts as agent for the Commonwealth, the Commonwealth may be sued as the employer: Coochey [70]: Section 352 [of the WR Act] does not purport to deem the employer of an employee of the Commonwealth to be anyone other than the Commonwealth. The section provides faciliatory and clarificatory means whereby, for the purposes of the [WR Act], the Commonwealth may conveniently act by agents described as ‘employing authorities’ and whereby persons dealing with the Commonwealth may conveniently do so by dealing with such agents. Although the relevant ‘employing authorities’ were the Minister of Defence and the Minister of the State for Industrial Relations (see Item 3 of Schedule 2 of the Workplace Relations Regulations 1996 (as in force at September 1998), the employer remained the Commonwealth. Coochey [56]–‍[57] is also instructive in concluding that the Commonwealth may be sued as a body corporate, not as an individual, because it is not a natural person, nor a private person acting on behalf of others, who are subject to one-fifth of the penalty that ‘would be available from a family company, however small’: Notwithstanding that the common modern phenomenon of private persons acting as trustees for others, including corporations, in large commercial ventures involving employment, including on a substantial scale, has apparently not excited the attention of the drafters of the legislation, the legislative policy appears to be to limit the exposure of individual people to large penalties. On the analysis in Coochey [70], where the Minister acts as agent for the State, the State remains the true employer and may be sued, such that it would have been open to the Union to name the State as a respondent. However, the consequence of the Union naming the Minister as the respondent, is governed by s 83(4A), which in its terms, attaches the maximum penalty to the legal status of the contravener before the court, not to the body (whether corporate or politic) that stands behind the named respondent. Thirdly, the ‘absurdity’ contended by the Union as said to flow from treating the Minister as an individual under s 83(4A), namely, that an outgoing Minister would remain personally liable for ongoing employment obligations, does not arise. References in the Prisons Act and the Agreement to ‘the Minister’ are, by force of s 12 of the Interpretation Act, references to the Minister ‘for the time being’ charged with the administration of the Prisons Act. Accordingly, the employment powers and obligations attach to the office-holder for the time being and continue, notwithstanding a change in the natural person occupying the office. That conclusion preserves continuity of employment and avoids the consequence that an outgoing Minister personally remains the employer of prison officers after leaving office. It does not follow, however, that the office-holder is a body corporate for the purposes of s 83(4A). Absent statutory incorporation, the Minister remains an individual within s 83(4A)(b). Fourthly, the Union submitted that treating the Minister as an individual under s 83(4A)(b) produces a deterrence shortfall and effectively immunises the Minister from a meaningful penalty. We do not accept that characterisation. The maximum penalty amounts that apply to an individual, of $13,000 for a contravention and $130,000 for a serious contravention, are not trivial. As outlined at [35]–[37] above, the choice in s 83(4A) is binary, and dependent on the contravener’s legal status. The Union’s complaint is, in substance, with the binary scheme under s 83(4A). Whatever policy considerations there may be in favour of higher penalties for an office-holder who acts as agent for the State, is a matter for the Parliament. It is not for this Full Bench to affix a third category (an individual office-holder who acts as agent for a body corporate) to s 83(4A). As outlined at [46] above, the Parliament has expressly constituted the Minister for Education a body corporate under s 214(1) of the School Education Act 1999 (WA), where it intends for the Minister for Education to have the legal status of a body corporate. As outlined by Madgwick J in Coochey [56] (at [55] above), the imposition of a lower penalty rate to an individual is not unique to ministers who act as agents for the State. It applies equally to any natural person who acts for another, such as a trustee acting for a corporate beneficiary engaging ‘in large commercial ventures, involving employment, including on a substantial scale’. It is the legal status of the contravener, and not the organisation or venture for whom they act, that determines the maximum penalty applicable. We have had the benefit of reading the Senior Commissioner’s reasons in this matter and at [148]‍‍‍‍–‍[169] of the first Full Bench decision. With respect, we differ on the point that ‘because the Minister’s actions which constitute the contravention were performed in the Minister’s capacity as an agent for the State’, it is appropriate to treat the matter as a ‘case of a body corporate’ under s 83(4A). As outlined at [34]–[62] above, it is our view that s 83(4A) does not permit that course. In summary, it is our view that: Section 83(4A) is drafted in unambiguously binary terms: ‘in the case of a body corporate’ and ‘in the case of an individual’. The proceedings before the Industrial Magistrate were brought against the Minister, and the maximum penalty must be determined by reference to the legal status of the respondent. The definition of ‘individual’ in s 5 of the Interpretation Act, in the absence of any statutory provision constituting the Minister as a body corporate, applies. The conclusion that the individual maximum penalty applies: Follows from the text of s 83(4A); and Is consistent with Frearson, CFMEU and Coochey. It follows that we find that his Honour erred in identifying $65,000 as the relevant maximum pecuniary penalty. The correct maximum, in the case before his Honour, was $13,000. We would therefore uphold Ground 7. Personal payment order The Union contended that, if the Minister is an individual, the Full Bench should make a personal payment order requiring the Minister to pay the penalty personally. We are not persuaded that s 83(4)(a)(ii) supports such an order. Unlike s 546(1) of the FW Act, which empowers a court to ‘order a person to pay a pecuniary penalty’ and which underpinned the personal payment order in ABCC v CFMEU, s 83(4)(a)(ii) is expressed as a power to ‘impose a pecuniary penalty in accordance with subsection (4A)’. That textual difference tells against the implication of a power to make a personal payment order. However, it is unnecessary to decide the outer limits of the power because no such order was sought at first instance, no evidentiary foundation was laid for it, it is not the subject matter of the Penalty Decision nor does it arise as a ground of appeal. Accordingly, it is not a form of relief that can be entertained for the first time on appeal. Ground 8 of FBA 10 of 2024 Ground 8 of FBA 10 of 2024 contends that the penalty was manifestly excessive. At [51]–‍[60] of the Penalty Decision (see [24] of the Minister’s remittal-hearing submissions at [23] above), his Honour found that the Minister had made the ‘deliberate choice’ to contravene cl 22.1 of the Agreement, by: Issuing a Departmental Guidance Note to change the prior practice and interpret the entitlement to payment of overtime on a public holiday under cl 22.1 differently; Embarking on a deliberate course by adopting the ‘new universal approach’ in the Guidance Note to the interpretation of cl 22.1; and Deciding to take the risk that the different or new interpretation was correct. Relevantly, the parties were the same as in the WAPOU Caution decision, and at [35]–‍[42] of the Penalty Decision, the Minister contended that his Honour should impose the same penalty, namely a caution, because: The contravention arose from the Minister’s interpretation of the Agreement. The Minister believed that Ms Harvey was only entitled to be paid her annualised salary for work performed on a public holiday. The disputed clause had not been judicially considered, was ambiguous, and had not been consistently applied. Ms Harvey’s entitlement was only upheld after an extensive analysis by his Honour of the preceding versions of the Agreement, going back to 2010. Only one contravention has arisen, with the damage limited to Ms Harvey having been underpaid $215.51. After outlining the Union’s submissions seeking the imposition of a mid-range pecuniary penalty, and the Minister’s submissions seeking the imposition of a caution, his Honour outlined the ‘very significant differences’ between the matter and the WAPOU Caution decision, that justify the imposition of a pecuniary penalty at [43]–‍[51] of the Penalty Decision: (emphasis added) Consideration Having regard to parties’ submissions and the circumstances of this case, this matter stands in contrast to the WAPOU Caution decision. I respectfully disagree with the [Minister’s] characterisation of the breach. I do not regard this as an appropriate case in which a caution should issue. There are several very significant differences between this matter and the WAPOU Caution decision, that justify the imposition of a pecuniary penalty, which I will now set out. Extent of conduct and the circumstances in which the breach occurred Although I accept that like the contravention in the WAPOU Caution decision, this case only involved a single breach, in which the quantum ($215.51) falls at the lower end of the range of underpayment, the contravening conduct in issue was more serious. The breach in the WAPOU Caution decision arose in the context of the [Minister’s] refusal to approve an employee’s application for personal leave. Under cl 71 of the [Agreement] (Personal Leave) management is permitted to exercise a discretion as to whether to refuse an officer’s application for personal leave. The [Minister’s] breach of cl 71 for which a caution was imposed occurred because the relevant superintendent and her superiors, who were invested with the requisite authority to accept or reject the affected officer’s sick leave application, did not exercise their discretion correctly. In contrast, the breach in this case did not involve an error in the exercise of the [Minister’s] discretion. It involved a breach of an entitlement provision in which there was no discretion to be exercised. In this matter, the [Minister] took a different view of the entitlements principal officers were entitled to receive under the [Agreement] on public holidays and decided to apply it across the prison system to an affected category of employees. The [Minister] concedes that it made a deliberate choice regarding its interpretation of [cl 22.1] and cl 136 (Public Holidays) of the [Agreement] which ultimately resulted in its breach of the [Agreement]. Where the parties are at odds, is how this choice should be viewed when determining whether a penalty should be imposed. Conduct was deliberate It is my view that the [Minister’s] deliberate choice regarding its interpretation of the relevant clauses of the [Agreement] relating to work on public holidays is what differentiates the [Minister’s] conduct in the present case from what was in issue in the WAPOU Caution decision. At [73]–‍[76] of the Penalty Decision, his Honour said: (emphasis added) Competing interpretations of the Agreement I accept that in this case, like the WAPOU Caution decision, there were competing arguments on the construction of the [Agreement] that needed to be resolved. In this matter the Court was required to review previous industrial instruments for the purposes of interpreting the [Agreement] in context. While I accept there is a role for the Court to play in resolving competing views as to how an industrial agreement should be interpreted as there was in the WAPOU Caution decision, and I have had regard to this as a mitigating factor, it is not a licence to avoid the imposition of penalties where the adoption of a new interpretation results in a deliberate breach of an industrial agreement. In this matter there were alternative paths the [Minister] could have taken that did not place it at risk of a pecuniary penalty. The [Minister] knowingly chose to follow a path that exposed it to this risk. In the circumstances, I do not consider that issuing a caution would be an appropriate outcome in this case. It would not have the desired deterrent effect the enhanced penalty regime under the IR Act was enacted to achieve. His Honour’s references to the contravening conduct being ‘more serious’ because it did not involve error, rather, the Minister ‘taking a different view’, making a ‘deliberate choice’, and ‘knowingly’ choosing a path that exposed the Minister to the risk of a pecuniary penalty, were significant reasons for his Honour determining to impose a $15,000 penalty. This is evident from what his Honour said at [77]: (emphasis added) Specific and general deterrence Noting the [Minister’s] breach of [cl 22.1] of the [Agreement] was deliberate, it is my view that a penalty for the purposes of specific deterrence must be set that will deter the [Minister] from repeating or engaging in similar contravening conduct. His Honour’s view that the Minister ‘made a deliberate choice to engage in contravening behaviour’ and that ‘Ms Harvey was deliberately deprived of an entitlement that she would otherwise have been entitled to receive’ is identified as the second and fifth of the matters listed at [83] of the Penalty Decision (at [16] above) as bearing upon the appropriate quantum. The parties indicated to the Full Bench that only documentary evidence was adduced at first instance, which was the reason the transcript from the first instance hearing was not included in the Appeal Book. As outlined at [11]–[12] of his Honour’s Substantive Decision, most if not all of the facts, were agreed between the parties and drawn from three evidentiary sources: the Agreed Facts (AB:23–25), the witness statement from Ms Harvey (AB:43–47), and the witness statement from Peter Vose, Acting Assistant Superintendent of Operations at Karnet (AB:116–121). We have reviewed these evidentiary sources, and with respect, we agree with the Minister that his Honour’s findings were not open on the evidence. His Honour made findings on a serious factual issue: that the Minister engaged in an intentional contravention and knowing risk taking. We agree with the Minister that findings of that character attract the principles in Briginshaw, and cannot rest upon inexact proofs, indefinite testimony or indirect inferences. We consider the following evidentiary gaps decisive for our view: Firstly, the relevant clauses were in substantially similar terms since 2013, and there was no evidence of disputation over the clauses in that period. Secondly, there was no evidence of a pre-existing Departmental position contrary to the Guidance Note. Mr Vose’s unchallenged evidence was that the Guidance Note clarified, rather than changed, the existing position. Thirdly, there was no evidence that the Minister made a ‘deliberate choice’ to depart from any pre-existing position. There was no evidence of the reason for issuing the Guidance Note, nor that the Minister’s interpretation of cl 22.1 differed after its issuance. Fourthly, there is no evidence that the Minister’s interpretation of cl 22.1 was adopted knowingly of the risk accruing from such interpretation. In summary, there was no evidence that the Minister’s interpretation of cl 22.1 was not reasonably held nor honestly held. Rather, the constructional question was not straightforward. As the Industrial Appeal Court’s reasons in Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2025] WASCA 177 demonstrate, the resolution of the issue required reference to historical instruments. Two members of this Full Bench in the first Full Bench decision preferred the Minister’s construction. That is significant evidence of the genuine arguability of the construction adopted by the Minister. We accept the Union’s contention that the ‘deliberate choice’ factor in [83(v)] of the Penalty Decision was a factor appearing alongside others in [83] and that his Honour stated in [83] that he has had regard to all the circumstances of the matter in determining that a fine of $15,000 was appropriate. However, in our view, the ‘deliberate choice’ factor clearly had operative significance upon the quantum of the penalty imposed by his Honour. His Honour said as much at [83] of the Penalty Decision, where his Honour concluded that the quantum of the penalty imposed was appropriate having regard to the ‘deliberate choice’ factor. In our view, the ‘deliberate choice’ finding being unavailable, the discretion miscarried. When that error is combined with the error in identifying the applicable maximum pecuniary penalty, the $15,000 cannot stand. If the individual maximum applies, the penalty exceeded the statutory maximum of $13,000 and was beyond power. In any event, the penalty was manifestly excessive because it was imposed by reference to an aggravating finding of deliberate or knowing contravention that was not open on the evidence. We would therefore uphold Ground 8. For the preceding reasons, we would quash the Penalty Decision and re-exercise the discretion. Re-exercising the discretion The findings remaining undisturbed are: The contravention was established. Therefore, the court may issue a caution or impose a pecuniary penalty (s 83(4)(a)). The contravention occurred against the background of a genuine constructional dispute as to cl 22.1 of the Agreement, the proper resolution of which required reference to historical industrial instruments and divided the Full Bench on appeal. The relevant clauses of the Agreement were in substantially similar terms since 2013, and there was no evidence of disputation over the clauses in that period. There is no evidence that the Minister’s interpretation was not honestly and reasonably held by the Minister. The contravention concerned the deprivation of an overtime entitlement ($215.51) to a single principal officer in respect of a single public holiday. The caution issued under the WAPOU Caution decision is not relevant to the exercise of discretion. Section 83(4)(a)(i) provides that, where a contravention is proved, the court may issue a caution as an alternative to imposing a pecuniary penalty. At [21] of the WAPOU Caution decision, citing Commissioner of Police v McCormack [2018] WAIRC 00809 [95], his Honour observed that a caution is not a penalty. We have considered whether, consistent with the WAPOU Caution decision, a caution rather than a fine is the appropriate disposition. The present matter shares the following important features with the WAPOU Caution decision; it concerns: A single contravention of modest quantum. A contravention arising from a genuinely contestable construction of the Agreement. The factor that led his Honour to distinguish the WAPOU Caution decision, his finding of a ‘deliberate choice’, is no longer available for the reasons given under Ground 8. However, his Honour identified another distinction at [48] of the Penalty Decision. Unlike the WAPOU Caution decision which involved an error in a Superintendent’s exercise of discretion to accept a statutory declaration as satisfying the minimum evidentiary requirements supporting an application for personal leave, the contravention of cl 22.1 involves ‘a breach of an entitlement provision in which there was no discretion to be exercised’. Accordingly, we are satisfied that a pecuniary penalty, rather than a caution, remains appropriate. The primary purpose of a pecuniary penalty is to promote the public interest in compliance with the law, through specific and general deterrence: FWO v Grouped [388]. The exercise is one of ‘instinctive synthesis’ rather than the rigid application of a checklist: Australian Ophthalmic [55], [91]. As Rangiah J observed in Hail Creek [15], a contravention arising from an honest and reasonable, but erroneous, construction of an instrument, is a powerful factor favouring the discretion to decline to impose any penalty, or to limit the amount of any penalty. In the circumstances identified at [88(c)] above, we do not consider that the Minister can be characterised as having ‘taken the odds’: Hail Creek [17]. Likewise, unlike the contraveners in United Workers’ Union v Compass Group Healthcare Hospitality Services Pty Ltd & Another [2024] SAET 49 (Compass), where at the time of their contravention there were decided cases at industrial commission and Federal Court level that were not supportive of their interpretation of s 119(1)(a) of the FW Act, such that viewed objectively, their interpretation was arguable, we do not consider that the Minister can be characterised as having ‘taken the risk that its arguable interpretation will fail upon judicial consideration’: Compass [108]–‍[109], [113]. Citing Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68 (Flight Centre) [63]–‍[64] and Hail Creek [15], amongst other High Court, Full Court of the Federal Court and Federal Court decisions, Bromberg J observed in Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 973 [35]–[36]: (footnotes omitted) 35 It is well settled and not in contest that an honest and reasonable belief may be a relevant mitigation factor in determining whether or not a penalty is to be imposed and, if so, the extent of the penalty imposed. 36 A contravention based on a mistaken belief of the law is mitigatory principally because that circumstance is likely to either diminish or negate the need for specific and/or general deterrence. That connection is apparent from what the Full Court said in Flight Centre at [64]: Usually a belief in the innocence of conduct that is a contravention of the statute is not an ameliorating factor. Nevertheless the object of the imposition of a penalty is substantially deterrence – specific and general. It is relevant to know that the conduct was done believing it to be innocent and knowing that the party, now disabused of its belief, will not, or is likely not to, reoffend. Specific deterrence in such circumstances is of less significance. Applying the rationale outlined by Bromberg J at [99] above, we consider that specific deterrence calls for modest weight. The proper construction of cl 22.1 of the Agreement has been authoritatively settled by the Industrial Appeal Court. There is no basis to apprehend that the Minister will again apply the construction now disavowed. The Minister’s clean record also weighs against a penalty, as the contravention in this matter occurred before the issuance of the caution in the WAPOU Caution decision. General deterrence is a more substantial consideration. The Minister is the statutory employer of a large prison officer workforce, and compliance with an industrial agreement is of obvious public importance. A penalty must be set at a level that signals to the Minister, and to industrial employers more generally, that contraventions of an entitlement provision will attract consequences. Against that, the contravention is a single underpayment of $215.51 to a single officer arising from a genuinely contestable construction of cl 22.1 of the Agreement, which was a clause whose construction required reference to historical industrial instruments and divided this Full Bench at the first appeal. Balancing these matters and giving weight to the principles at [96]–[99] above, we consider that a penalty at the lower end of the available range is appropriate. The penalty must be more than nominal, because contraventions of entitlement provisions by a large public sector employer call for a real deterrent response. However, the penalty must also reflect the genuineness of the constructional dispute, the modest amount involved, the isolated nature of the contravention, and the absence of any proven aggravating mental element. We would fix the penalty at $1,300, being 10% of the applicable maximum of $13,000. We consider that sum is sufficient to mark the importance of compliance and to give effect to general deterrence, while properly reflecting the mitigating features of the contravention. Ground 2 of FBA 13 of 2024 Ground 2 of FBA 13 of 2024 contends that the penalty was inadequate by reason of the corrective action finding. Both parties accept that his Honour erred in treating counsel for the Minister’s correspondence dated 31 January 2024 as the Minister having taken corrective action by paying Ms Harvey the overtime payment in dispute. There was no admissible evidence before his Honour to support that finding. Ordinarily, an erroneous finding of corrective action may be material to penalty because corrective action can mitigate penalty. However, in light of our conclusions on Grounds 7 and 8 of FBA 10 of 2024, we have quashed the Penalty Decision and re-exercised the penalty discretion (at [88]–‍[107] above). In re-exercising that discretion, we have given no mitigating weight to any supposed corrective action. The factual error identified by the Union has therefore been cured by the fresh exercise of discretion and does not provide a basis for increasing the penalty beyond the amount we have fixed. Ground 2 of FBA 13 of 2024 is dismissed. Conclusion Given our reasons above, we would: (a) Uphold the Minister’s appeal Grounds 7 and 8 in FBA 10 of 2024. (b) Quash the Penalty Decision and set aside Order 2 of the Orders made by the Court on 9 April 2024, and issued on 11 April 2024, requiring the Minister to pay a fine to the Union, fixed in the sum of $15,000. (c) Order that the Minister pay a fine to the Union, fixed in the sum of $1,300. (d) Dismiss the Union’s appeal Ground 2 in FBA 13 of 2024.