FEDERAL COURT OF AUSTRALIA

Pine v Austress Freyssinet (Vic) Pty Ltd (ACN 089 766 576) [2005] FCA 583

LISETTE PINE  -v-  AUSTRESS FREYSSINET (VIC) PTY LTD (ACN 089 766 576)

VID 1496 of 2004

RYAN J

5 MAY 2005

MELBOURNE

THE COURT ORDERS THAT:

1.           That a penalty of $800.00 is imposed on the respondent in respect to its contraventions of s 187AA of the Workplace Relations Act 1996 (Cth) on 5 and 6 August 2003.

2.           That such penalty be paid into the consolidated revenue fund.

3.           That the penalty be paid within 21 days to the District Registrar of the Court in Melbourne.

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

REASONS FOR JUDGMENT

1                     There is before the Court an application for the imposition of penalties on the respondent under s 187AD of the Workplace Relations Act 1996 (Cth) (“the Act”).  Those penalties are sought for contravention of s 187AA of the Act, by making payments to four persons in relation to periods during which each of those persons engaged in industrial action.  The applicant also seeks a declaration that by making each of the payments, the respondent contravened s 187AA.

2                     A statement of agreed facts has been filed which discloses that each of the four persons to whom the payments were made was an employee of the respondent employed pursuant to the Austress Freyssinet (Vic) Pty Ltd and CFMEU Building and Construction Industry Collective Bargaining Agreement 2002‑2005 (“the certified agreement”). 

3                     The four employees were working at the time on post-tensioning of concrete on the Concept Blue apartment building at 336 Russell Street, Melbourne (“the Concept Blue site”).  On Friday, 1 August 2003, a Mr Andrew Schouten, a labourer, was killed when a crane near which he was working struck overhead wires on a farm at Shepparton.  Apparently, there was no work scheduled to be performed by the respondent at the Concept Blue site on the next three days.  The 2nd August was a Sunday and the next day, Monday, 3 August, was a rostered day off under the certified agreement.

4                     Work at the Concept Blue site resumed as normal on the next day, Tuesday, 5 August, but stopped at 8.30 am when the CFMEU conducted a site safety audit pursuant to its “on-site fatalities policy and procedure”.  Each of the respondent’s four employees stopped work at that time and did not resume work at all during that day, Tuesday, 5 August.  On the following day, Wednesday, 6 August, workers on the site, including, as I understand, the respondent’s four employees, went to the site sheds as they arrived at about 7.00 am.  At about 7.30 am a mass meeting of workers at the Concept Blue site was held over a dispute related to payment for the time not worked on the previous day.

5                     At about 8.30 am on the same morning a meeting was held between representatives of the head contractor, Multiplex Ltd, and representatives of the CFMEU.  Later, at about 10.00 am, another mass meeting was held and the workers agreed to return to work on the basis of an agreement which had been reached between Multiplex and the CFMEU over the issue of payment for the previous day.  Each of the respondent’s employees participated in the stop-work meetings on the morning of Wednesday, 6 August and so did not resume work until about 10.00 am on that day. 

6                     On or about 13 August, payments were made on behalf of the respondent to each of the four employees in respect of the period of about six and a half hours during which they had not worked on Tuesday 5 August and the period of about three hours during which they had not worked while the stop-work meetings were being conducted on the morning of Wednesday 6 August.  An explanation for making those payments appears in these terms at pars 12 and 13 of the agreed statement of facts:

‘12.      At the time of making the total payment referred to in Paragraph 11, the Respondent's senior supervisor of operations, Peter Cole, who normally confirms and authorises payment, was on leave.  Cole's replacement John Wiseman took the timesheets at face value.  The leading hand on the Concept Blue site who was responsible for submitting the employees’ time sheets, did not make any diary entries in relation to any industrial action on the Concept Blue site on those days.

13.       The leading hand who was the Respondent’s senior representative at the Concept Blue site submitted a timesheet to the Respondent's off-site management which recorded that each of the Respondent’s employees had worked 8 hours on each of 5 and 6 August 2003.  In so doing, he did not disclose that those employees had engaged in industrial action on those days.’

7                     It is accepted that the respondent customarily withholds payment of wages in respect of periods during which its employees engage in industrial action.  It claims to be “well aware” that payment of strike pay is unlawful and a breach of Pt VIII of the Act.  Instances are given in the agreed statement of facts of two occasions on which the respondent has adhered to the practice to which I adverted a moment ago of withholding payment in respect of periods during which its employees have engaged in industrial action.  In the concluding paragraph of the agreed statement of facts it is recited:

‘The Respondent paid its employees for the times they did not work on 5 and 6 August 2003 on the Concept Blue site, because its off-site management was not aware of the industrial action on the site on those days.  As stated at Paragraph 12, the Respondent's standard procedure is that their Operations Supervisor approves the time sheets, prior to payment.’

8                     No prior convictions have been alleged against the respondent.  The stoppage on the Concept Blue site on 5 and 6 August 2003, according to paragraph 14 of the agreed statement of facts, led to its incurring a cost of between $3,000.00 and $6,000.00.  It is not indicated in the statement of facts whether that cost includes the amount of $900.70 paid to the employees in question.  Section 187AA(1) provides:

‘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; or

(b)   the employer was or is a constitutional corporation bound by an award, a certified agreement or an AWA during that period; or

(c)   the industrial action was taken, or is being taken, in connection with work regulated by an award, a certified agreement or an AWA; or

(d)   the industrial action was taken, or is being taken, in relation to an industrial dispute; or

(e)   the industrial action was or is of a kind referred to in paragraph (a), (b) or (c) of the definition of industrial action in subsection 4(1); or

(f)   the industrial action was taken, or is being taken, in a Territory.’

9                     The orders that the Court may make in respect of a contravention of s 187AA are identified in s 187AD(1), which until 10 August 2004, provided;

‘In respect of contraventions of section 187AA or 187AB, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:

(a)   an order imposing on a person who contravened or is contravening that section a penalty of not more than$10,000.00;

(b)   if the person contravened or is contravening section 187AB - an order requiring the person to pay to an employer compensation of such amount as the Court thinks appropriate;

(c)   injunctions (including interim injunctions), and any other orders, that the Court considers necessary to stop the contravention or remedy its effects;

(d)   any other consequential orders.’

10                  The conduct admitted by the respondent is at the lower end of the range of culpability for which the Act, at the time when the industrial action occurred, prescribed a maximum penalty of $10,000.00.  Since the respondent has elected to avoid expenditure of further public moneys by not contesting the allegations of contravention and in the light of the explanation of the contravention as arising from unusual circumstances I shall impose a penalty of $200.00 for each contravention, making a total penalty of $800.00, which I shall order should be paid into consolidated revenue.

11                  That seems to be broadly in line with penalties imposed in recent comparable cases, to which I have been referred by Mr Rawson, for the applicant, including Ponzio v BVM Builders Pty Ltd [2005] FCA 238, Clarke v Baulderstone Hornibrook Pty Ltd [2003] FCA 1426 and MX Constructions Pty Limited v Adco Constructions Pty Limited [2004] FCA 193.  I see no utility in making the declaration sought by the applicant, which, in any event, I doubt is a “consequential order” within the meaning of par (d) of s 187AD(1).  In the result therefore, the orders of the Court are:

1.           That a penalty of $800 is imposed on the respondent in respect to its contraventions of s 187AA of the Act on 5 and 6 August 2003.

2.           That such penalty be paid into the consolidated revenue fund.

3.           That the penalty be paid within 21 days to the District Registrar of the Court in Melbourne.

Associate:

Dated:              11 May 2005