FEDERAL COURT OF AUSTRALIA

Furlong v APN Development and Delivery Pty Ltd

[2005] FCA 1915

FURLONG v APN DEVELOPMENT AND DELIVERY PTY LTD

VID 905 OF 2005

NORTH J

30 NOVEMBER 2005

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application is dismissed.

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

REASONS FOR JUDGMENT

1                     Before the Court is an application under s 187AD(1)(a) of the Workplace Relations Act 1996 (Cth) (the Act) in relation to a contravention by APN Development and Delivery Pty Ltd, the respondent, of s 187AA(1) of the Act.

2                     The respondent admitted having paid some of its employees during work stoppages on 6 August 2003 and 23 October 2003. The work stoppage constituted industrial action as defined by the Act, and the respondent accepted that it was in breach of s 187AA(1) of the Act. The contraventions involved payment to eight employees for three hours work on 6 August 2003, a total of $534.78, and further nine employees for three hours on 23 October 2003, a total of $598.62. In each case the stoppage occurred on the site at 380-390 Latrobe Street, Melbourne.  In each case the stoppage followed the death of a building worker at another site.  The first stoppage followed the death of a worker on 1 August 2003 in Shepparton while performing irrigation channel works, and the second stoppage followed the death of a building worker on 22 October 2003 in Deer Park while performing asbestos roof removal work.  It is accepted by the parties that both deaths did not relate to the Latrobe Street site.  Nonetheless, the stoppages occurred in conformity with a union policy which required a safety audit on all building sites following a death in the industry.

3                     The Latrobe Street site involved the construction of a 20 storey office building for about $90 million.  The respondent agreed to lease the completed building to AWB Limited. The terms of the lease involved penalties for delay in the construction.  The two stoppages in question did not delay the project such as to incur any liability for damages to AWB Limited and the project was completed on time and on budget. 

4                     There are some factors relating to the respondent relevant to determining a proper penalty for the contravention.  The respondent has no prior convictions. It intends to cease its involvement in construction work in December 2005.  It did not oppose the application and co-operated with the applicant at the earliest opportunity.  Mr O’Grady, who appeared on behalf of the applicant, however, emphasised the fact that the payments were made in accordance with the respondent’s policy and its response to a death in the industry is a matter of site resolution and the best way forward.  Generally, in relation to industrial action, the policy of the respondent is that it does not pay employees if they are not working. 

5                     The applicant asks the Court to make a declaration that the respondent has contravened the Act.  There are a number of circumstances which persuades me that this would not be the appropriate course in this case.  The number of employees involved in each occasion was not large.  The time of the stoppage on each occasion was short.  The amount of money paid in total was not large.  There was no detriment to any other participant in the project as a result of either the stoppage or the payment of the strike pay. The respondent has no prior convictions and is not intending to be involved in the industry beyond next month. 

6                     This is a clear case for the applicant to have warned the respondent about its conduct without taking the matter further.  That warning might have indicated that if the conduct were repeated, then, it could involve proceedings in the Court.  There was no evidence before me whether such a warning had been given.  Furthermore, it is not clear to what extent the enforcement of these provisions has been made known in the industry. 

7                     A further factor in considering whether to make a declaration is the background to the industrial action in each case.  The action was not taken out of self interest, for instance, to enforce a claim for higher pay. Rather it was taken in response to two tragic deaths in the same industry.  One can easily understand why workers would feel the need to stop work to check the safety on their own sites against such a background.  One can also readily understand that employers acting humanely in such circumstances would not seek to visit the cost of such action on the employees. Nonetheless, the Act requires that any such action is taken at the expense of the employees. 

8                     It does not automatically follow that upon a contravention being shown, the Court is bound to make a declaration that a contravention has occurred.  There is an important reason for the Court to exercise a careful judgment and some forbearance in considering whether to make a declaration in circumstances where the facts do not reveal a blatant and serious contravention.  Where the circumstances which are at the low end of culpability, the Court should be slow to make a declaration. In a society such as the Australian society which values the rule of law it is important that the Court act only in circumstances in which there is a real and significant grievance to be vindicated.  The danger of the Court using its authority in cases which are trivial, or at the low end of the spectrum of contravention, creates the danger that the community will devalue the rule of law.  It will be seen that the legal system is concerned with matters of small moment.  The agreed facts of this case, do not justify the making of a declaration. 

9                     Although the analogy is not complete I expect that the public would view the making of a declaration in circumstances where workers stopped for a short time to the prejudice of nobody, in conformity with a policy reflecting concern with safety in the industry, would regard the situation as perhaps similar to the over zealous policeman standing with his speed radar gun at the bottom of a hill where people could hardly avoid speeding.  For the Court to act in such circumstances would bring the law into disrepute.  The Court should not prejudice respect of the rule of law by sanctioning such prosecutions. 

10                  This judgment is delivered against a background in which the Court has raised, in two previous cases, the problem created where the applicant seeks relief in factual situations which do not seem to justify the heavy hand of prosecution.  Mr O’Grady, told the Court that the comments of the Court in those cases have been considered by the prosecuting authority and have caused certain changes in direction. That is to be welcomed. It is to be hoped that in future cases applications will be brought only where circumstances justify the Court acting.  In the meantime it is to be hoped that a more educative and conciliatory approach to contraventions is taken if that is not presently the case.  I say that because I am not aware of the steps which the prosecuting authorities may have taken.  However, the bringing of applications such as this suggests that litigation has been preferred over a warning process and an educative process. 

11                  The application is dismissed.  I raised the question whether the applicant should be ordered to pay the costs of the unsuccessful application: s 347.  Mr D’Abaco, who appeared as counsel for the respondent, did not seek an order in those terms. This was a proper approach because there was no basis on the material which was before the Court to indicate that, at the time the proceeding was instituted, it was done vexatiously.  Nonetheless, the prosecution authority should bear in mind the provisions of s 347 of the Act and the possibility that a respondent in the future may seek to rely on the section wherein the circumstances similar to the present the Court refuses the relief sought.

Associate:

Dated:              30 November 2005