FEDERAL COURT OF AUSTRALIA

Ponzio v BVM Builders Pty Ltd [2005] FCA 238

WORKPLACE RELATIONS – payments in relation to periods of industrial action – payment by employer to an employee in relation to a period during which the employee engaged in industrial action while the employee was a member of an organisation – contravention admitted – breach admitted – circumstances in mitigation – institution of procedures to prevent further breaches

Workplace Relations Act 1996 (Cth) ss 4, 84, 187AA, 187AD, 187AF

Workplace Relations Act 1996 (Cth) reg 96

Masters v Highway One Transport Pty Ltd (1990) 33 IR 1 referred to

Peat v Oxley Airlines Ltd (1991) 40 IR 96 referred to

GARY PONZIO v BVM BUILDERS PTY LTD (ACN 007 333 726)

V 1494 of 2004

KENNY J

15 MARCH 2005

MELBOURNE

THE COURT ORDERS THAT:

1.         A penalty of $200 is imposed on the respondent in respect of contravention of s 187AA of the Workplace Relations Act 1996 (Cth) on 5 and 6 August 2003.

2.         Such penalty be paid into the Consolidated Revenue Fund.

3.         Such penalty be payable forthwith to the District Registrar of this Court in Melbourne by way of a cheque payable to the Consolidated Revenue Fund.

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

REASONS FOR JUDGMENT

1                     The applicant applied, pursuant to s 187AC of the Workplace Relations Act 1996 (Cth) (“the Act”), for orders under s 187AD in respect of an admitted contravention of s 187AA. 

2                     Subsection 187AA(1) provides that an employer must not make a payment to an employee in relation to a period during which the employee engaged, or engages, in industrial action if:

“(a)     the employer or employee was or is a member of an organisation during that period; …”.

Subsection 187AA(3) provides that a contravention of subs (1) is not an offence. 

3                     Section 187AD provides that, in respect of a contravention of s 187AA, the Court may, if the Court considers it is appropriate in all the circumstances of the case, make one or more of certain orders, including an order imposing on a person who contravened the section a penalty of not more than $10,000. 

4                     According to the statement of claim filed in the proceeding, the applicant is an inspector appointed under s 84 of the Act and is entitled to bring the proceeding pursuant to s 187AC(2)(c) of the Act and reg 32B of the Workplace Relations Regulations 1996 (Cth).  The statement of claim alleges that the respondent is a “constitutional corporation” for the purposes of s 4, and an “employer” for the purposes of s 187AA of the Act.  There is no dispute about these matters.

5                     The parties sought orders that the respondent be relieved from the requirement to file a defence and, in lieu, that they have leave to rely upon a statement of agreed facts.  The Court granted this leave and relieved the respondent from the need to file a defence.

6                     Amongst other things, the statement of agreed facts stated that:

·                    On 1 August 2003, a man was killed when the crane he was working near struck overhead power lines on a farm in Shepparton.  There was no connection between the work being performed on the Shepparton farm and the work being performed by the respondent some days later at the Concept Blue Apartments project at 336 Russell Street in Melbourne (“the Concept Blue site”), other than that the respondent’s work could be said to be “building and construction” work.  Work continued as normal on the Concept Blue site on 1 August 2003; and no work was carried out on the following day (Sunday) or the Monday after that, which was a rostered day off. 

·                    The CFMEU’s Onsite Fatalities Policy and Procedure is a published policy regarding procedures to be undertaken following a death in the industry of a unionised construction worker from an industrial accident.  The policy provides that a mass meeting will be called the following day on all other sites in the industry to hear a report on the incident.  A safety audit is then conducted and once identified safety issues have been rectified, areas are progressively opened to production.  Other actions considered necessary can be voted on at a site mass meeting.

·                    On 5 and 6 August 2003, the respondent was (a) a body corporate bound by certified agreement, namely the BVM Builders Pty Ltd and CFMEU Building and Construction Industry Collective Bargaining Agreement 2002–2005 (“the Certified Agreement”); and (b) engaged by Multiplex Limited (“Multiplex”) to perform work at the Concept Blue site.

·                    At about 8.30 am on Tuesday 5 August 2003, work ceased on the Concept Blue site while the site safety audit was conducted in accordance with the CFMEU’s Onsite Facilities Policy and Procedure concerning the death in the industry on 1 August 2003.  At about 1.00 pm the safety audit, which was taking longer than normal, was still not completed.  A dispute arose between Multiplex and the unions over whether workers would be paid for the time they were sitting in the sheds.  No work was done by the end of the scheduled day at about 3.30 pm. 

·                    Both of the respondent’s employees ceased work at the Concept Blue site at about 8.30 am on 5 August 2003 and remained at the site until about 3.30 pm that day, but failed or refused to perform any work during that period.

·                    At about 7.00 am on Wednesday 6 August 2003, the workers went to the site sheds as they arrived at the Concept Blue site.  At about 7.30 am a mass meeting was held on the Concept Blue site in relation to the dispute over payment for the previous day.  At about 8.30 am a meeting was held between Multiplex and the CFMEU.  At about 10.00 am a mass meeting was held and the workers agreed to return to work based on a resolution between Multiplex and the unions over payment. 

·                    On 6 August 2003, both of respondent’s employees failed or refused to perform any work on the Concept Blue site between the time at which they were rostered to commence work and about 10.00 am. 

·                    The respondent made a total payment of $405.85 to Salvatore Attardi and Lino Santolin for a period (or periods) during which they engaged in industrial action on the Concept Blue site on 5 and 6 August 2003.  This included payment to each of the respondent’s employees of $138.85 for 6.5 hours in relation to the Tuesday and $64.08 for 3 hours in relation to the Wednesday.

·                    The respondent is unable to quantify the cost of the stoppages but the works the respondent was engaged by Multiplex to perform on the Concept Blue site were completed within time and budget. 

·                    The respondent was aware that its employees were not working at the relevant times on 5 and 6 August 2003, and of the invoking of the CFMEU’s Onsite Facilities Policy and Procedure on the Concept Blue site, but it was unaware of the dispute over payment.

·                    The respondent’s decision to pay both its employees for periods of industrial action was an internal decision taken in the interests of maintaining good employee relations. 

·                    The respondent’s decision was made when it was unaware of the unlawfulness of making payments for periods of industrial action.  The respondent’s policy has been changed to reflect this and its employees have not subsequently been paid, and will not in the future be paid, for periods of industrial action.

·                    The respondent has no prior contraventions of Part VIII of the Act. 

7                     The gist of the present application is also set out in the statement of agreed facts, as follows:

“The respondent was an employer who made a payment to 2 employees (Salvatore Attardi and Lino Santolin) in the amount of approximately $405.85 in relation to a period (or periods) on 5 and 6 August 2003 during which Salvatore Attardi and Lino Santolin engaged in industrial action. 

The industrial action constituted a failure or refusal by Salvatore Attardi and Lino Santolin to perform any work during the period between about 8.30 am and about 3.30 pm on 5 August 2003 and the period between the time at which they were rostered to commence work and about 10.00 am on 6 August 2003”.

mitigating factors

8                     The respondent did not dispute its contravention of the Act.  In the statement of agreed facts, the applicant noted “the Respondent’s lack of opposition to the Application at the earliest available opportunity as a mitigating factor to be taken into account in imposing an appropriate penalty”.  That is, the applicant accepted that the respondent had admitted the contravention at the earliest opportunity, and had co-operated with the applicant in the matter. 

9                     At the time of the decision to pay its employees for periods of industrial action, the respondent (which is a family-owned company) did not know that it would be contravening the Act if it did so.  In other industrial law contexts, the Court has held that the conduct and knowledge of a respondent is relevant in determining an appropriate penalty for contravention of the law:  compare Masters v Highway One Transport Pty Ltd (1990) 33 IR 1 at 2-3 per O’Loughlin J; and Peat v Oxley Airlines Ltd (1991) 40 IR 96 at 96-97 per Foster J. This proceeding has made the respondent’s officers aware of the applicable law.  The quantum of the total payment was not large.  Since the applicant’s action, the respondent has put in place a policy and system designed to prevent any contravention of s 187AA in the future.  The respondent has not previously contravened Part VIII of the Act. 

disposition

10                  The applicant accepted that these matters were mitigating factors but submitted that the Court should make an order for a penalty and the penalty should not be merely nominal.  The applicant relied on the fact of contravention and the necessity to ensure compliance with s 187AA of the Act in support of this submission.

11                  The respondent has contravened s 187AA of the Act, but the mitigating factors are strongly in the respondent’s favour.  Having regard to all the circumstances of the case, including the offence, the attendant circumstances, including the matters to which the respondent has referred by way of mitigation, I consider it appropriate to impose a penalty of $200.  Accordingly, I propose to make an order to this effect, together with an order under s 356 of the Act that the penalty be paid into the Consolidated Revenue Fund.

Associate:

Dated:              15 March 2005