FEDERAL COURT OF AUSTRALIA

Furlong v Maxim Electrical Services (Aust) Pty Ltd [2005] FCA 1518

INDUSTRIAL LAW – payments in relation to periods of industrial action – breach admitted – no utility in imposing penalty

Workplace Relations Act 1996 (Cth) s 187AA

Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500, followed

Australian Competition and Consumer Commission v Woolworths (South Australia) (2003) 198 ALR 417, referred to

Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428, followed

MURRAY FURLONG v MAXIM ELECTRICAL SERVICES (AUST) PTY LTD,WALTER J PRATT LTD, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, DAVID MIER, MARK GRECH, MICHAEL DOUGLAS and MAXIM ELECTRICAL SERVICES (VIC) PTY LTD

VID 1580 OF 2004

MARSHALL J

27 OCTOBER 2005

MELBOURNE

THE COURT DECLARES THAT:

1.         The second respondent contravened s 187AA of the Workplace Relations Act 1996 (Cth) when it paid wages to the sixth respondent, Brett McCullen, Paul Derrick, Anthony Page, Richard Noonan, Paul Grant, Ray Fenton, Hamish Preston and David Vella.

2.         The second respondent committed a breach or non observance of the Walter J Pratt Pty Ltd and CEPU Enterprise Agreement 2002-2005 by failing to follow the steps detailed in cl 12 of the agreement in good faith and without reasonable delay, or at all.

3.         The second respondent committed a breach or non observance of cl 7 of the Walter J Pratt Pty Ltd and CEPU Enterprise Agreement 2002-2005 by failing to follow the procedure set out in cl 18 of the Victorian Building Industry Agreement and by failing to attempt to reach agreement as soon as possible.

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

REASONS FOR JUDGMENT

1                     The second respondent, Walter J Pratt Ltd, admits to contravening s 187AA(1) of the Workplace Relations Act 1996 (Cth).  That provision makes it unlawful for an employer to pay an employee for a period during which the employee engages in industrial action.  There is a real issue in this proceeding whether the relevant employees did engage in industrial action.  That is yet to be determined.  All I am currently required to do is to assess the appropriate penalty, if any, to be imposed on Pratt, on the basis of the agreed statement of facts advanced by it and the applicant, Mr Furlong.  I have no current view on whether the contraventions alleged against the other respondents to this proceeding have or will be established. This aspect of the matter takes on some significance in light of the position of the third respondent Union that I should not give judgment with respect to Pratt at this time. See the discussion at [10] to [13] below.

2                     Pratt admits that it made payments to the following nine employees:

·                    Michael Douglas, (the sixth respondent);

·                    Brett McCullen;

·                    Paul Derrick;

·                    Anthony Page;

·                    Richard Noonan;

·                    Paul Grant;

·                    Ray Fenton;

·                    Hamish Preston; and

·                    David Vella,

in the total sum of approximately $1542 in respect of 5 August 2003.

3                     Pratt admits that the nine employees engaged in industrial action on 5 August 2003.  The industrial action is said to be the failure of the employees to work on that day from about 8.30 am to the end of the working day.

4                     Mr Furlong also seeks the imposition of a penalty on Pratt for breaching a certified agreement.  Pratt admits that it breached the certified agreement by not taking the steps required by a dispute settlement clause and by not following the procedure set out in cl 18 of the Victorian Building Industry Agreement.

5                     Pratt has a policy that it will not pay employees for periods during which those employees take industrial action.  However, it says that it has, on occasions, made such payments following rulings by the Victorian Building Industry Disputes Board.  It has paid employees for time lost where bona fide safety issues have prevented productive work being performed.

6                     Pratt’s current position on payments for periods of industrial action is:

·                    it will not pay employees for periods where they refuse to work because of a safety issue, unless the issue is considered by WorkSafe Victoria inspectors to be a bona fide safety issue and there is no possibility of transfer to a safe place of work.

·                    it will not be involved in matters in the Victorian Building Industry Disputes Board which involve issues of payment for periods of industrial action.

7                     In Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500, Finkelstein J considered the appropriate penalty to be imposed in the context of a contravention of s 187AA in very similar circumstances to those which currently apply.  At [10] in Seelite Windows, his Honour said:

“Should I impose a penalty on the respondents?  No harm has been done to anyone.  The contravention was inadvertent.  It is unlikely to occur again.  The amount of wages involved is insignificant.  In these circumstances it would be quite wrong to punish the respondents.  Nothing would be achieved by the imposition of a pecuniary penalty.  There is no need for a specific deterrent:  it is simply not necessary.  And if any penalty were imposed it would be so low that it could not act as a general deterrent.”

8                     Finkelstein J said at [11] that he would only declare a contravention of the Act.

9                     In my opinion the same result should follow in respect of Pratt.  No penalty should also apply to the breaches of the certified agreement.  They were inadvertent and inextricably bound up in the admitted breach of s 187AA.  In accepting that Pratt breached the certified agreement I am not to be taken as expressing any view about the conduct of the third respondent, the Union.

10                  Before deciding to publish these reasons for judgment at this stage, my staff invited the solicitors for the Union to provide written submissions as to why the Court should not make orders now with respect to Pratt. The Union submitted on 9 September 2005 that it opposed the Court giving judgment concerning Pratt before dealing with the remainder of the matter.

11                  In its written submissions the Union contended that judgment in the Pratt matter may result in inconsistent findings occurring in the same proceedings. It referred to a judgment of Mansfield J in Australian Competition and Consumer Commission v Woolworths (South Australia) (2003) 198 ALR 417, where his Honour refused to make orders against a respondent until the case against all other respondents had been considered.

12                  The concerns of the Union are misplaced. The Court is proceeding on the basis of an agreed statement of facts which only binds the parties to it. As said at [1] above, I have no view whether or not that agreement is soundly based. I have no concern about the possibility of finding facts which are inconsistent with the agreed facts document if that is what the interests of justice require. The interests of justice also require a speedy resolution of the issues between Mr Furlong and Pratt, where the relevant facts binding only those parties have been agreed on between them. Support for such an approach, in materially identical circumstances, is found in the judgment of Merkel J in Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428.

13                  It was for the above reasons that I decided to give judgment on this aspect of the matter at this time.

Associate:

Dated:              27 October 2005