FEDERAL COURT OF AUSTRALIA

The Australian Workers Union v Johnson Matthey (Aust) Ltd [2000] FCA 728

INDUSTRIAL LAW - determination of compensation, penalty and ancillary relief for contraventions of ss170MU, 298K of the Workplace Relations Act 1996 (Cth) - considerations to which the Court will have regard in determining whether contraventions justify penalty and if so, the appropriate level of penalty - whether non - economic loss suffered requires financial compensation

Workplace Relations Act 1996 (Cth) ss170MU, 170NF, 170NH, 298K, 298U, 356

The Australian Workers Union v Johnson Matthey (Aust) Ltd [2000] FCA 360; (2000) 171 ALR 410 referred to

CFMEU v Coal & Allied Operations Pty Ltd (No 2) [1999] FCA 1714; (1999) 94 IR 231 followed

AFMEPKIU v DMG Industries Pty Ltd [1999] FCA 735; (1999) 89 IR 360 referred to

THE AUSTRALIAN WORKERS UNION v JOHNSON MATTHEY (AUST) LTD (ACN 004 146 838)

V 425 of 1999

MARSHALL J

29 MAY 2000

MELBOURNE

THE COURT ORDERS THAT:

1.         Pursuant to s170NF(1) of the Workplace Relations Act 1996 (Cth) (“the Act”) a penalty of $6000 be imposed on the respondent for the contravention of s170MU(1)(a) of the Act referred to in par 1 of the Court's order of 31 March 2000 (“the previous order”).

2.         No penalty be imposed with respect to the contraventions of the Act referred to in pars 2, 3 and 4 of the previous order.

3.         Pursuant to s298U(a) of the Act, a penalty of $3000 be imposed on the respondent for the contravention of s298K of the Act, referred to in par 5 of the previous order. 

4.         Pursuant to s170NH(1)(b) of the Act, the respondent pay to Mr Mrmacoski compensation in the sum of $110 on or before 19 June 2000.

5.         Pursuant to s356(b) of the Act, each such penalty referred to in pars 1 and 3 of this order (in total $9000) be paid to the applicant on or before 19 June 2000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 31 March 2000 the Court delivered its reasons for judgment on questions of liability in this proceeding.  The topic of relief was deferred to a later occasion (see The Australian Workers Union v Johnson Matthey (Aust) Ltd [2000] FCA 360; (2000) 171 ALR 410).  These reasons for judgment should be read together with those of 31 March 2000.

2                     This morning counsel addressed the Court on the topics of penalty, compensation and what I might call ancillary relief. It was agreed that it was appropriate to order that Mr Mrmacoski be compensated for his loss of one day's wages for his unlawful stand-down on 15 July 1999. The agreed sum, including interest, was $110. The major issues between the parties was the quantum of penalty, if any, which the Court should impose on Johnson Matthey (Aust) Ltd (“the Company”) for its contraventions of the Workplace Relations Act 1996 (Cth) (“the Act”).

3                     As at 15 July 1999, Mr Mrmacoski proposed to engage in industrial action which was intended by The Australian Workers Union (“the Union”) to be protected industrial action. Together with some other casuals Mr Mrmacoski was laid off. The Court found on 31 March 2000 that Mr Mrmacoski was laid off wholly or partly because he proposed to engage in protected action. The action of the Company in laying off Mr Mrmacoski was designed in part to intimidate Mr Mrmacoski into not participating in the foreshadowed industrial action. It was intimidatory conduct designed to dissuade Mr Mrmacoski from taking lawful protected industrial action. As a result, Mr Mrmacoski lost one day's pay, for which the Company made no effort to compensate him.

4                     The offending conduct was in deliberate defiance of statutory provisions which enjoined it. The only explanation proffered for the conduct was that it occurred in the context of threatened industrial action. That is no excuse given that the action was intended to be protected.  The relevant conduct struck at the very heart of the ability of an employee to take protected industrial action free from intimidation. I view the contravention as serious, although it did not have lasting effect because Mr Mrmacoski stood firm and refused to be intimidated. 

5                     The lack of long-term adverse consequences, whilst significant, should not loom too large as a mitigating factor on penalty.  A transgressor should not unduly benefit from the stoicism of the injured party. Although the Company has no history of offending against the Act, the need to deter like conduct is an important factor to consider on the question of penalty.  When all the factors referred to by Branson J in CFMEU v Coal & Allied Operations Pty Ltd (No 2) [1999] FCA 1714; (1999) 94 IR 231 at par 8 are taken into account, I consider it appropriate to order a mid-range penalty which is commensurate with the seriousness of the offence and which takes into account the mitigating factors referred to above, including the lack of prior like conduct and the lack of continuing consequences of the actions of the Company. In the circumstances, I believe that a penalty of $6000 is appropriate. 

6                     The contraventions referred to at pars 2, 3 and 4 of the order of 31 March 2000 (“the previous order”) arise out of the same course of conduct as the contravention referred to in par 1 and in respect of which a penalty of $6000 will be imposed. I consider it inappropriate to order that any penalty be imposed in respect of those three contraventions (see AFMEPKIU v DMG Industries Pty Ltd [1999] FCA 735; (1999) 89 IR 360 at pars 13 to 17).

7                     Paragraph 5 of the previous order deals with the conduct of a senior representative of the Company in telling a shop steward that if members of the Union went on strike they would not have jobs when they returned. The Court viewed that comment as a threat to Mr Scicluna which would convey a message that going on strike would lead to dismissal, whether the strike was protected industrial action or not.  That conduct was serious and in breach of the freedom of association provisions of the Act, as it has been found to be conduct taken by reference to Mr Scicluna's union membership. Although serious, it is not as serious as the course of conduct in which regular casual employees were sought to be induced not to join in protected industrial action. A lesser penalty than that imposed earlier in these reasons is appropriate. I will order that a penalty of $3000 be imposed for the relevant breach.

8                     It is usual in the circumstances of matters such as this proceeding where a penalty is imposed to order that it be paid to the person who applied for the penalty (see Coal & Allied at pars 17 - 18). There was no argument specifically on this issue and no specific opposition to that course, and there appears to be no reason therefore why what Branson J described as “the usual order” should be departed from.

9                     The Union also requested that the Court order that the Company display a notice on a noticeboard in a prominent position at the workplace relevant to the issues at the heart of the application regarding the breaches of the Act which the Court has found to have occurred. It was submitted that a notice in the following form should appear on the noticeboard for a period of one month:

“On 31 March 2000, the Federal Court of Australia declared that Johnson Mathey (sic) (Aust) Ltd had contravened the Workplace Relations Act 1996 (Cth) in five ways on three separate occasions in June and July of 1999. The Court imposed penalties on the company in respect of those contraventions on …2000.

The case was taken to the Court by the Australian Workers Union (‘AWU’).

The Contraventions found by the Court were:

·        the dismissal of John Naumovski because he proposed to engage in protected industrial action and because he was a member of the AWU;

·        the dismissal of Oliver Mrmacoski because he proposed to engage in protected industrial action and because he was a member of the AWU; and

·        the threatened dismissal of Donald Scicluna because he was a member of the AWU.

Johnson Mathey (sic) (Aust) Ltd recognises and respects the fundamental rights of all of its employees to be members of a union that they are eligible to join.

Further, Johnson Mathey (sic) (Aust) Ltd recognises and respects that its employees have the right pursuant to the Workplace Relations Act 1996 (Cth) to participate actively in the process of collective bargaining to improve their working conditions including, in circumstances permitted by the Act, the right to engage in lawful protected industrial action.”

10                  The Company opposed the making of such an order.  The first three paragraphs of the proposed notice are no more than a brief, albeit accurate, summary of this proceeding. There is no reason why the Union could not circulate a notice in that form in the workplace or display it on its noticeboard.  The last two paragraphs of the proposed notice set out the alleged state of mind of the Company.  However, I have no evidence before me that the Company holds such views.  If such views had have been held and a statement in those terms voluntarily made to the Court, the penalty would have been reduced to take into account those mitigating factors.

11                  The Union also requested that the Court make an order for a small amount of compensation for non-economic loss to Mr Naumovski and Mr Mrmacoski in respect of the anxiety caused to them by their treatment at the hands of the Company. I consider that the vindication of their rights in the judgment of 31 March 2000 and this judgment will be more than adequate compensation for any anxiety suffered by them on the particular weekend concerned in mid-July 1999.

The Court makes the following orders:

1.         Pursuant to s170NF(1) of the Workplace Relations Act 1996 (Cth) (“the Act”) a penalty of $6000 be imposed on the respondent for the contravention of s170MU(1)(a) of the Act referred to in par 1 of the Court's order of 31 March 2000 (“the previous order”).

2.         No penalty be imposed with respect to the contraventions of the Act referred to in pars 2, 3 and 4 of the previous order.

3.         Pursuant to s298U(a) of the Act, a penalty of $3000 be imposed on the respondent for the contravention of s298K of the Act, referred to in par 5 of the previous order. 

4.         Pursuant to s170NH(1)(b) of the Act, the respondent pay to Mr Mrmacoski compensation in the sum of $110 on or before 19 June 2000.

5.         Pursuant to s356(b) of the Act, each such penalty referred to in pars 1 and 3 of this order (in total $9000) be paid to the applicant on or before 19 June 2000.

Associate:

Dated:              6 June 2000