NSW Pecuniary Penalties and burden of proof

[Taco Cat]

If a breach of the Fairwork Act is alleged in the Federal Circuit Court and no pecuniary penalties are claimed, the reverse onus of proof applies.
If pecuniary penalties are claimed, then the burden of proof is what exactly? Presumably the onus is now on the applicant, but is the burden of proof still the balance of probabilities or the criminal burden of proof?
Also, if penalties are claimed, is there now only one burden of proof, the higher burden on the applicant, for the entire case, or can the court theoretically uphold the applicant’s case for breaches of the act, but not for the implementation of pecuniary penalties based on failure to prove the higher burden?

 

[Docupedia]

Civil penalties are on the balance of probabilities. Criminal penalties are beyond a reasonable doubt. Not sure what’s in that Act, but a lot of acts will have a civil penalty provision and a similar criminal penalty provision. It’s then up to the regulator what they seek a prosecution under based on how they characterise the offence and what standard they expect they can prove. Often they go for civil penalties as the burden is a lot lower.

 

[CSFLW]

Is this for a general protections claim?

 

[Taco Cat]

Yes. General protections claim. Adverse actions and maybe section 343 coercion. For instance, I’m confused about how section 361 - reason to be presumed unless proven otherwise works if say, someone held vicariously liable claims penalty privilege. That type of circumstance, or simply what onus is there on the applicant to call witnesses if pecuniary penalties are claimed?

 

[CSFLW]

Okay. Are you the employee or employer? And are you in the federal court?

 

[CSFLW]

Sorry, you are in FCC I just read that.

 

[CSFLW]

Sorry, is this an unlawful dismissal case?

 

[Taco Cat]

No, not involving dismissal.

 

[CSFLW]

Are you the employee?

 

[Taco Cat]

Sorry, yes employee.