Federal Court of Australia

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Zinfra Contracting Pty Ltd [2025] FCA 1234

ORDERS

THE COURT ORDERS THAT:

1.    Paragraphs 5, 6, 7, 9, 10, 12, 18, 23, 24, 25, 27, 30, 31, 32, 33, 34, 35, 36, 37, 39, 40, 41, 44, 45 and 46 of the statement of claim dated 24 December 2024 be struck out.

2.    The applicant be granted leave to replead within 28 days the paragraphs of the statement of claim that have been struck out in order 1 above insofar as they concern Mr Marshall Te Waaka (presently spelt “Tewaka”).

3.    There be no order for costs in relation to the respondent’s interlocutory application dated 7 March 2025.

4.    The proceeding be listed for a case management hearing on a date to be fixed in consultation with the parties.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    The applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (the CEPU), alleges that the respondent, Zinfra Contracting Pty Ltd, has underpaid overtime, travel time and meal allowances to its employees. If that is proven, each such underpayment will constitute a breach of particular clauses of an enterprise agreement that was in force at the time, so as also to constitute contraventions of s 50 of the Fair Work Act 2009 (Cth) (FWA). Section 50 is a civil remedy provision.

2    The CEPU seeks declarations of contravention, the payment of compensation to affected employees, and the payment to it of pecuniary penalties. As detailed further below, the CEPU is also seeking ancillary orders for the assessment by a referee of the amounts underpaid to each employee by virtue of the alleged contraventions.

3    The CEPU is entitled to represent the industrial interests of Zinfra’s employees who perform maintenance, construction and associated duties in the electrical distribution and transmission industry. The case brought by the CEPU only names one employee, Mr Te Waaka, who is a union delegate. The bulk of its case is pleaded by reference to certain employees of Zinfra as a class, without any of them being identified. There is no apparent dispute that the CEPU can act for those employees as a class. However, Zinfra contends that the CEPU cannot plead its case in the way it has presently done so.

4    The case was initially brought by way of a concise statement, but following a case management hearing on 22 November 2024, I ordered that the CEPU file a statement of claim, which it did on 24 December 2024. Zinfra filed a defence on 7 March 2025, which contained objections to a number of paragraphs of the statement of claim. On the same day, Zinfra filed an interlocutory application seeking, in the greater part, to strike out the paragraphs of the statement of claim that it objected to in its defence, without leave to replead. The exceptions are that Zinfra does not seek to strike out [13] of the statement of claim (at least in part), which is objected to in the Defence, and does seek to strike out [46] of the statement of claim, which is not specifically objected to in the defence.

The enterprise agreement

5    The CEPU made an enterprise agreement with Zinfra called the Zinfra Contracting Pty Ltd NSW and ACT Electrical Works Enterprise Agreement 2021 (2021 EA). That has been replaced by the Zinfra Contracting Pty Ltd NSW & ETU NSW & ACT Enterprise Agreement 2024-2027 (2024 EA). This proceeding is concerned with the 2021 EA and accordingly no further reference will be made to the 2024 EA. A review of the CEPU’s membership database has revealed that it has an unstated number of members employed by Zinfra who were covered by the 2021 EA.

The pleadings and relief sought

6    On 2 October 2024, the CEPU commenced this proceeding by filing an originating application and concise statement. The CEPU alleged in this concise statement, and continues to allege in the replacement statement of claim that was subsequently filed, that Zinfra had breached various clauses of the 2021 EA and thus contravened s 50 of the FWA by failing to pay certain of its employees in accordance with those clauses.

7    The substance of the allegations made and maintained by the CEPU are in the following three categories:

(a)    Instead of paying for the actual hours spent travelling to work locations which were more than 100 km away from each employee’s “Designated Home Base” (at ordinary or overtime rates depending on when this travel occurred), Zinfra’s contravening practice was to pay employees an amount equivalent to four ordinary hours’ pay for time spent travelling from the relevant Designated Home Base, irrespective of the time the employee actually spent travelling from their home (travel time contravention).

(b)    Instead of paying a meal allowance for working more than two hours beyond ordinary hours, Zinfra’s contravening practice was to pay a meal allowance only if employees worked more than two hours longer than their rostered shift hours (meal allowance contravention).

(c)    Instead of paying for a minimum of 144 ordinary hours in a 28-day roster cycle, Zinfra’s contravening practice was to pay employees for a lesser number of ordinary hours (ordinary hours contravention).

8    The CEPU alleged in the concise statement that these underpayments occurred in relation to the following group of individuals, which it termed the Employees (a definition which is also adopted throughout these reasons, which also refer to each individual within this group as an Employee):

Zinfra’s employees who perform maintenance, construction and associated duties in the electrical distribution and transmission industry and who are engaged in a classification set out in Annexure A of the Agreement (Employees).

9    On 24 December 2024, in accordance with orders made on 22 November 2024, which flowed from the case management hearing on that day, as varied on 20 December 2024, the CEPU filed a statement of claim that repeated these alleged contraventions, and additionally pleaded:

(a)    that these alleged contraventions occurred in relation to a single named employee, Mr Marshall Tewaka (apparently a misspelling of “Te Waaka”);

(b)    various additional particulars relating to the alleged contraventions concerning Mr Te Waaka; and

(c)    an alleged contravention in relation to the Employees, namely that Zinfra did not maintain any record of the hours worked by the Employees in travelling to and from work sites, in contravention of s 535(1) of the FWA (record keeping contravention).

10    If the CEPU is successful, it seeks in its originating application:

(a)    declarations that, by the travel time contravention, meal allowance contravention, and ordinary hours contravention, Zinfra contravened the relevant clauses of the 2021 EA and s 50 of the FWA;

(b)    compensation of the employees affected by these breaches; and

(c)    the imposition of pecuniary penalties arising from Zinfra’s breach of s 50 of the FWA, to be paid to the CEPU.

11    The CEPU also seeks, by [2] of the originating application, orders pursuant to s 545(1) of the FWA, s 54A of the Federal Court of Australia Act 1976 (Cth) and r 28.61of the Federal Court Rules 2011 (Cth) for the appointment of a referee, at Zinfra’s cost, to:

inquire into the employee records of Zinfra in respect of employees covered by the Agreement, and to produce … a written report identifying the amounts underpaid to each employee of Zinfra affected by its contraventions identified in paragraph 1 above [being the ordinary hours contravention, the travel time contravention and meal allowance contravention].

12    The CEPU did not amend its originating application after it filed the statement of claim by which it pleaded the additional contraventions outlined at [9] above. Consequently, it does not by the originating application seek any relief in relation to the record keeping contravention. Instead, this contravention was pleaded in order to invoke s 557C of the FWA, which reverses the burden of proof in relation to a matter if an employer was required to keep records in relation to that matter but failed to do so.

13    The CEPU seeks relief for alleged contraventions in relation to Zinfra’s “employees”, which is not a defined term in the originating application. As Zinfra has not pleaded any allegations affecting individuals beyond the Employees, I understand that Zinfra seeks relief in relation to this group and any subset thereof, including Mr Te Waaka, insofar as the Court considers the claim for relief to be made out.

14    On 7 March 2025, Zinfra filed a defence which included an objection to numerous paragraphs of the statement of claim, asserting they were embarrassing and evasive in that they failed to identify the “Employees”. Under cover of that objection, Zinfra denies those allegations. Zinfra’s defence only pleads in terms to the allegations made in relation to Mr Te Waaka. This approach can be illustrated by reference to the parties’ respective pleadings in relation to the travel time contravention, which are extracted at Annexure A to these reasons. In particular, Zinfra:

(a)    objects to all paragraphs which refer to the “Employees” (being, in relation to the travel time contravention, [9], [10], [12], [13] (in part), [17], [18] and [19]) on the basis that each of them is “embarrassing and evasive in that it fails to identify Employees, and should be struck out without leave to replead;” and denies those paragraphs under cover of that objection; and

(b)    pleads in terms to the other paragraphs, including those which refer to Mr Te Waaka (for example, in relation to the travel time contravention, [13] (in part), [15] and [16]).

15    Also on 7 March 2025, Zinfra filed the present interlocutory application, seeking, in large part, that the paragraphs objected to in the defence be struck out without leave to replead.

The CEPU’s approach to pleading and proposal for the conduct of the proceedings

16    The CEPU overtly describes its case in its first set of written submissions provided prior to the hearing of the strike out application, and repeated in substance in more detailed submissions provided at that hearing, as being:

advanced by reference [to] a group of workers labelled “the Employees”. The Employees are defined as a class, being Zinfra’s employees who perform certain duties in the electrical distribution and transmission industry and who are engaged in an Agreement classification. They are not identified by name.

17    Apart from Mr Te Waaka, none of the “Employees” are identified at all other than as a member of the class.

18    The CEPU’s first set of written submissions also state (omitting footnotes):

[5]    The CEPU has not pleaded or otherwise provided particulars of each instance in which Zinfra breached the Agreement in respect of each Employee, nor the quantum of the underpayments which resulted. It is not able to do so, because it does not know precisely when each Employee worked or travelled. It has no realistic means of obtaining that information before commencing proceedings. It is able to provide some particulars in relation to some workers, but seeks to advance its case on a basis that is not limited to those contraventions which it can currently particularise, and which is not limited to the underpayment of its members alone.

[6]    The question arising on this application is whether the rules of pleading in this Court foreclose the CEPU from proceeding in this way. Put differently, the question is whether in a proceeding of this kind it is necessary to plead at the outset each instance of each alleged contravention. The question is, from the CEPU’s perspective, one of broad significance.

(Emphasis added.)

19    The difficulties that the CEPU has encountered in advancing its case in relation to the Employees are described in more detail in the affidavit of Mr Armen Aghazarian affirmed 8 May 2025, adduced for the purposes of meeting Zinfra’s strike out application. This evidence discloses that the CEPU:

(a)    does not have information, let alone evidence, concerning actual underpayments to any particular employee apart from Mr Te Waaka; and

(b)    has no realistic means of obtaining that information other than from Zinfra.

20    In particular, Mr Aghazarian deposes that, after various efforts to obtain more specific information regarding the alleged contraventions:

[16]    Having gone through that exercise, I did not have sufficient information to allow me to identify the particular occasions on which union members have been (on the Union's interpretation of the Agreement) underpaid in any of the three ways which are alleged in these proceedings. I do not have any information about non-Union members except for the information Mr Tewaaka and other members have given me about Zinfra's employment practices.

[17]    Mr Tewaaka was the only Zinfra member who provided me with dates of when he travelled to and from site, how long that took, the method of travel and instances where he had worked more than two hours of overtime without prior notice.

[18]    The Union could, with a large investment of time and resources, provide particulars of some of the alleged contraventions in relation to some of Zinfra's employees who are its members. It could not at this stage provide full particulars of the contraventions in relation to its members and could provide few or no particulars of the contraventions in respect of non-members.

21    The CEPU’s case in relation to each alleged contravention concerning the Employees is effectively that Zinfra had construed the EA incorrectly, and had adopted practices which had led it to fail to pay its employees their travel time, meal allowance and ordinary hours entitlements, and also to fail to collect some records as to employees’ travel time. As it emerged at the hearing, for most of the alleged contraventions, that apprehension is based on Zinfra’s own submissions in a Fair Work Commission dispute resolution proceeding, in which it described how it interpreted and applied the 2021 EA, at least in relation to the travel time and meal allowance contraventions. It was apparently also supplemented by information obtained from some of its members, and in particular from Mr Te Waaka.

22    In light of the difficulties outlined above, the CEPU proposes that the Court deal with the proceedings in two stages, being broadly the following.

23    First, the CEPU would seek to satisfy the Court that Zinfra has committed the alleged contraventions against the Employees. It submits that it could achieve this by proving both that the relevant provisions of the 2021 EA should be construed in the manner it suggests, and that Zinfra had a “practice” of paying its employees which was inconsistent with this construction. Its preferred course, in the event that it is able to prove these matters, is for the Court to then make the declarations of contravention which it seeks on this basis. However, the CEPU alternatively submitted that I could make a declaration recording the proper interpretation of the 2021 EA, and indicate in my reasons for doing so that I was satisfied that one or more contraventions had in fact occurred in all the circumstances.

24    Second, and subsequently, the CEPU proposes that a referee should be appointed by the Court to investigate and report on the individual contraventions committed against each employee by looking at Zinfra’s records (at Zinfra’s expense), to inform the Court’s consideration of the appropriate relief to be granted in relation to the contraventions. The CEPU contends that the Court would have the power to make this order under s 545(1) of the FWA, which empowers the Court to “make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision”, and s 54A of the Federal Court of Australia Act and r 28.61 of the Federal Court Rules, which empower the Court to refer proceedings to a referee for inquiry. The CEPU sought to frame the referee’s inquiry as one which would be focussed on the quantum of underpayments. However, it is clear that, given the lack of information in the pleadings or available to the CEPU regarding the particular contraventions alleged to have been committed against each individual Employee, the inquiry would also need to identify the specifics of these contraventions. That would include details such as the identities of the particular employees affected (as a step prior to identifying the amount of underpayment), which are necessary for the Court to be able to effectively exercise its jurisdiction as to relief, including by making the appropriate orders for compensation and penalties.

Zinfra’s interlocutory application

25    By its interlocutory application, Zinfra seeks orders to strike out almost all parts of the statement of claim that plead contraventions in relation to the Employees, under r 16.21(b), (c), (d) or (e) of the Federal Court Rules. Zinfra contends that the CEPU has failed to provide sufficient material facts regarding the alleged contraventions in relation to the Employees, by failing to identify each Employee individually and the facts alleged to give rise to each contravention against each of them. In doing so, Zinfra submits that the CEPU has failed to disclose the case that it must meet in terms of specific contraventions that are alleged against it. It objects to the CEPU’s proposal as to the future conduct of the proceeding, on the basis that Zinfra would only know the number of specific contraventions alleged against it after the substantive liability hearing, and even then only as a result of findings made by a referee, at its expense.

26    In these circumstances, Zinfra’s strike out application seems to rely principally on r 16.21(d), which refers to being likely to cause prejudice, embarrassment or delay in the proceeding, and/or r 16.21(e) which relevantly refers to a failure to disclose a reasonable cause of action or other case appropriate to the nature of the proceeding.

27    If the strike out that Zinfra seeks was ordered, the CEPU:

(a)    would be limited to pursuing the ordinary hours, travel time, and meal allowance contraventions in relation to Mr Te Waaka only (provided the CEPU was permitted to replead certain facts in relation to Mr Te Waaka which as currently pleaded refer only to the Employees, of which he is one), for whom Zinfra accepts that the CEPU has sufficiently pleaded the required material facts; and

(b)    would be unable to pursue the record keeping contravention at all, given that it is only pleaded in relation to the Employees who are not identified.

The authorities

Applicable pleading principles

28    The general principles as to pleadings are well-established, well-known and not in dispute. As Mason CJ and Gaudron J explained in Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 (at 286):

The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) [(1916) 22 CLR 490 at 517], per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision.

29    This function is encapsulated in the pleadings requirements set out in the Federal Court Rules. It seems to be common ground that in the present dispute, the relevant requirement is contained in r 16.02(1)(d), which provides that a pleading must:

state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved […].

30    A rule to that effect has long been a feature of the rules of this Court and indeed of many other courts: see, eg, Uniform Civil Procedure Rules 2005 (NSW) rr 14.7, 14.14(1). Order 11 rule 2(a) of the former Federal Court Rules 1979 (Cth) (Former Rules), which were in operation from 1 August 1979 until they ceased to be in effect on 31 July 2011, due to the commencement of the current Federal Court Rules on 1 August 2011, provided, at least as at the end of 2001:

a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which he relies, but not the evidence by which those facts are to be proved […].

31    Order 4, rule 6(2) similarly provided:

The affidavit or statement of claim [which must be filed by the applicant] shall show:

(a)    the nature of the applicant’s claim; and

(b)    the material facts on which it is based.

32    Although these former provisions did not explicitly state that the material facts which needed to be pleaded were those necessary to provide fair notice of the case to the respondent, it has long been understood that this is the case. As Beaumont J observed in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1994] FCA 636; 217 ALR 226 at 235 (cited with approval by Wigney J in KTC v David [2022] FCAFC 60 at [114]):

It is well-established that material facts must be pleaded with a degree of specificity which is sufficient to convey to the opposite party the case that party has to meet. Thus, a bare conclusion is ordinarily not a proper allegation. Procedural fairness demands no less …

33    These pleadings requirements have been found to apply with particular emphasis to proceedings seeking pecuniary penalties, such as the case at hand. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 (Logan, Bromberg and Katzmann JJ), the Full Court, after citing and quoting from authority about civil pleadings generally, said (as part of [63]):

… a civil suit for the recovery of a pecuniary penalty is a proceeding of a penal nature: Naismith v McGovern (1953) 90 CLR 336 at 341. In this class of case, it is especially important that those accused of a contravention know with some precision the case to be made against them. …

34    In Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 (Tracey, Reeves and Bromwich JJ), the Full Court, in addressing pleadings in a civil penalty case brought by a regulator, said:

[49]    One of the main purposes of pleadings is to define the issues in dispute with sufficient clarity to enable the opposite party to understand the case he or she has to meet and to provide him or her with an adequate opportunity to prepare to meet that case: see Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ). A concomitant of this principle is that a party is not entitled to depart from his or her pleaded case except if the parties have both deliberately chosen to conduct the dispute on a different basis. That principle was expressed in Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287 in the joint judgment of Mason CJ and Gaudron J as follows:

The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) [(1916) 22 CLR 490], per Isaacs and Rich JJ at 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, e.g., Browne v Dunn [(1893) 6 R 76]; Mount Oxide Mines [(1916) 22 CLR 490 at 517-518].

(Emphasis added.)

[50]    In our view, these observations apply with even more force in a proceeding such as this where declarations of contravention of the FWA were sought against the respondents and civil penalties were sought to be imposed on them. Faced with those serious consequences, the respondents were entitled to be told clearly and precisely in the Commissioner’s ASOC what case it was they had to meet and, unless they deliberately chose to allow the case to be conducted on a different basis, to direct their evidence and arguments to that case and that case alone. Plainly, this latter exception did not permit the Commissioner to make a significant addition to, or departure from, the pleaded case, in counsel’s opening or closing submissions and then seek to justify that course by pointing to the respondents’ failure to object as evidence of their acquiescence in that course. If that were the test, this departure from the basic requirements of procedural fairness would not occur by the deliberate choice of the party entitled to fair notice but rather at the self-serving behest of his or her opponent. If such an approach were permitted, the requirement to give fair notice would be made redundant, trial by ambush would become a legitimate tactic, and the issues in dispute at trial would become a movable feast. As well, the ability of a trial judge to manage the trial to ensure it fairly addressed the issues in dispute would be significantly eroded, if not entirely destroyed. So, too, would be the capacity of the trial judge to identify the issues he or she needed to decide.

(Emphasis added to [50].)

35    The above statements of principle in BHP Coal and Hall were specifically endorsed by Logan and Katzmann JJ in Sabapathy v Jetstar Airways Ltd [2021] FCAFC 25; 283 FCR 348 at [39]-[40].

36    The CEPU did not take any issue with the above principles. Instead, it characterised the issue as how the principle that a responding party is entitled to know with some precision the case brought against them should to be applied to this case. To this end, there was some dispute between the parties as to the significance of a number of prior decisions which dealt with similar pleadings alleging globally framed contraventions, which are considered below.

Approach to “global” pleadings

37    In CFMEU v Able Demolitions & Excavations Pty Ltd [2001] FCA 1748, Marshall J considered a strike out application over various pleadings by which an applicant sought the imposition of penalties arising from an employer’s underpayment of employee entitlements. The significance of Able Demolitions was a point of contention between the parties, given the similarities between that case and the case at hand with respect to the approach to pleading, cause of action, and relief sought. In particular, the applicant’s pleadings in Able Demolitions alleged, at a global level, that the respondent had failed to pay a group of “employees” their entitlements under the relevant award and enterprise bargaining agreement. To this end, it has not been suggested that there is any relevant distinction between a civil penalty case brought in relation to underpayment of entitlements under an award (which was an aspect of the case in Able Demolitions) and a civil penalty case brought in relation to underpayment of entitlements under an enterprise agreement (as is central to the current dispute). It can also be noted that there is no material difference between the requirements for pleadings contained in r 16.02(1)(d) of the Federal Court Rules as they currently stand, and O 4 r 6 and O 11 r 2 of the Former Rules as they stood at the time of Marshall J’s decision (as outlined at [30]-[31] above).

38    After referring to those provisions of the Former Rules, Marshall J observed, referring to the case of Warramunda Village Inc v Pryde [2001] FCA 61; 105 FCR 437, which is considered in more detail below:

[12]    For a Statement of Claim to disclose a cause of action in award breach proceedings it must usually plead matters which would ordinarily include the following matters:

•    the existence of an award

•    the terms of it alleged to be breached

•    the persons (if any) in respect of whom a breach of the award has occurred

•    the dates, times and places (if relevant) upon which the breach occurred

[13]    The above requirements, whilst self-evident are also seen to be necessary ones in cases which allege award breaches by the observations of a Full Court in Warramunda Village Inc v Pryde [2001] FCA 61, (2001) 105 FCR 437 at [11] (“Pryde”). It is clear from Pryde that it is inappropriate “to plead alleged underpayments in a global sense”. More than being inappropriate, a global pleading makes it exceedingly difficult for a trial judge to make any precise orders identifying actual breaches of awards in the event that an interpretation of the award favoured by an applicant is concurred in by the trial judge. In circumstances where it is alleged that a respondent to an award has not made payments to employees which they are entitled to receive the material facts pleaded should ordinarily include:

•    the identification of the employees in question, and if necessary their classifications

•    the facts which give rise to the entitlement to the relevant payment

•    the employer’s failure to make the payment

•    the relevant dates, times and places

(Emphasis added to [13].)

39    Justice Marshall then turned to the application of these principles to the paragraphs of the statement of claim which the respondent sought to strike out. After upholding those paragraphs that pleaded the framework of the respondent’s obligation and related facts in general terms, his Honour turned to the general allegations of contravention.

40    In relation to pleadings which alleged the respondent had failed to pay an “in charge allowance” to employees who were entitled to such an allowance under the award, Marshall J said:

[25]    In order for the respondent to meet the case of the applicant [that the Respondent failed to pay an allowance provided for by the award] it is entitled to be aware of the following material facts:

•    which employees have been engaged in a classification of the sort alleged

•    which employees have been in-charge of plant as alleged

•    when, and in respect of what periods of time, were there underpayments of wages in respect of failure to pay an in charge allowance.

Pryde identified the importance of such information being provided. It is not to the point to say that the observations of the Court in that respect were dicta. They were nonetheless important observations made about the requirement for precision in pleadings in award breach matters. Global pleadings leading to global findings, and the making of global declarations, will not assist in the making of final orders requiring precise recording of the actual award breaches found, if any. It is not to the point that some of the details, which should have been specifically pleaded, are now the subject of answers to a request for further and better particulars. Particulars are not appropriate to be used to fill chasms in statements of claim; see Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees Association of Western Australia (1987) 13 FCR 413 at 419, per French J where His Honour said that:

“Particulars cannot be used to fill gaps in the statement of claim which ought to have been filled by appropriate statements of the various material facts together constituting the cause of action.”

[26]    Unless a particular employee was engaged in a relevant classification, was in-charge of plant and was not appropriately remunerated in respect of such work, there will have been no breach of the award. A global pleading which fails to employ such specificity cannot be described a material fact which, with other facts, constitutes a cause of action. I consider that paragraphs 42 and 43 of the Statement of Claim should be struck out.

(Emphasis added to [26].)

41    Similarly, in relation to pleadings which claimed that the respondent failed to pay a prescribed industry allowance to employees engaged in construction work, Marshall J found (at [29]):

Clause 7 defines “the Employees” as employees who perform demolition work […]. The respondent is entitled to be informed as to which of its employees are said by the applicant to be engaged in demolition work. It is also entitled to know the pay periods in respect of which it is alleged that such persons were not paid an industry allowance when they should have received such payment. The pleading in paragraph 46 lacks the necessary specificity and will be struck out.

42    Justice Marshall also struck out the applicant’s pleadings which alleged the respondent had failed to pay employees a meal allowance (at [31]):

The pleading in paragraph 48 relates to a claim for meal allowance the qualification for which depends on whether an employee has worked overtime “for at least one and one half hours after working ordinary hours” (see cl 24.9.1 of the Award). This again is a global pleading. It lacks the requisite specificity which has been identified as a vice in similar pleadings in the Statement of Claim. Those employees entitled to a meal allowance and not paid it should be identified together with the relevant pay periods and days on which the entitlements arose. Paragraph 48 will be struck out. Paragraph 49 alleges a breach of cl 24.9.1, it is ancillary to paragraph 48 and will also be struck out.

(Emphasis added.)

43    At [13] and [25] of Able Demolitions (extracted above), Marshall J referred to the reasons of the Full Court in Warramunda Village Inc v Pryde [2001] FCA 61; 105 FCR 437 (Gray, Branson and North JJ). Pryde was a decision to set aside a notice of appeal from the orders of a primary judge (who happened to be Marshall J) which had been made as a preliminary step intended to precede a hearing on penalties. These orders included declarations that the respondent had committed breaches of various award provisions in general terms, without specifying “the date of any breach, the term of any particular award of which the breach had been committed, or the nature of the breach” (Gray, Branson and North JJ at [12]). The Full Court found that, as a result of this lack of specificity, the primary judge’s orders were not binding declarations of right under s 21 of the Federal Court of Australia Act on the basis that:

[12]    In no sense […] did the declarations made by the trial judge declare the rights of the parties. They did not attempt to declare the proper construction of any term of an award. They did not declare that, on any specified day, any breach of any term of an award had occurred.

44    On this basis, the Full Court found that the respondent’s notice of appeal was incompetent, because it concerned orders which were not binding declarations of right, and was therefore in substance only an appeal against reasons. In reaching this conclusion, Gray, Branson and North JJ made the following observations regarding the applicant’s pleadings, which were obiter but are illuminating nonetheless (at part of [11]):

… As a step towards the exercise of the jurisdiction, it is obviously necessary to determine whether any breach of any term of an award has occurred. It may be necessary to determine the proper construction of the term of the award. It will almost certainly be necessary to make findings of fact. In a case such as the present, those findings must include findings as to the circumstances in which particular persons performed work for their employer on particular days and the amount or amounts they were paid in respect of that performance of work. It can then be determined, by reference to specific terms of the award concerned whether the person concerned should have been paid some other amount, by way of overtime rate, or specific rate fixed for a Saturday, Sunday or public holiday, pursuant to a particular term of an award. The amended statement of claim did not seek to deal with the application in this way. It attempted to plead the alleged underpayments in a global sense, referring only to numbers of days worked that were Saturdays, Sundays or public holidays, and not specifying any particular breach in respect of any particular day. …

45    The litigation with which Pryde was concerned returned to the Full Court on a further appeal from the final orders made by Marshall J in Warramunda Village Inc v Pryde [2002] FCA 250; 116 FCR 58 (Lee, Finkelstein and Gyles JJ). It was submitted by counsel for the CEPU that the reasoning of the first Full Court in Pryde outlined above should be treated with some caution in light of Finkelstein J’s comments in this latter decision, which directed some criticism at the prior Full Court’s reasoning. However, as Finkelstein J’s commentary was obiter and in reasons given by only one of the judges sitting on that appeal, I consider myself bound by the Full Court’s prior unanimous decision in Pryde, even though certain aspects of that decision extracted above (i.e., the Full Court’s commentary on the inappropriateness of the way in which the case was pleaded) were also obiter, albeit considered obiter. On this basis, it is unnecessary to consider further Finkelstein J’s criticism of that decision. Nevertheless, for completeness, I do not consider that his Honour’s remarks would affect the aspects of Pryde which are relied upon in these reasons.

46    A further decision which bears some relevance to the case at hand is Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v SIMPEC Pty Ltd [2025] FCA 470; 339 IR 334 (Colvin J), in which the CEPU, as the applicant in that case, also alleged breaches of an enterprise agreement and resulting contraventions of civil remedy provisions of the FWA, said to arise from SIMPEC’s failure to properly calculate its employees’ leave entitlements. As in the present case, the CEPU pleaded those contraventions on a global basis as affecting a class of workers, without identifying each worker individually. SIMPEC Pty Ltd submitted that, as a result, the matter should proceed only in relation to a single worker identified by the applicant; but it did not raise that point in the form of an application to strike out the pleadings. Colvin J ultimately concluded that the claim was properly brought on behalf of the class of workers as a whole, but that no contraventions had in fact occurred: see SIMPEC at [79], [90]-[103].

The parties’ positions

47    The CEPU submits that, whilst it does not dispute the principles said to emerge from the authorities as to pleadings requirements, the application of these principles must be guided by modern case management principles. The CEPU referred in particular to the observations of the Full Court in Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 (Greenwood, McKerracher and Reeves JJ) at [13] that:

It is well-established that the main purposes of pleadings are to give notice to the other party of the case it has to meet, to avoid surprise to that party, to define the issues at trial, to thereby allow only relevant evidence to be admitted at trial and for the trial to be conducted efficiently within permissible bounds … However, it is also well-established that pleadings are not an end in themselves, instead they are a means to the ultimate attainment of justice between the parties to litigation … For these reasons, the courts do not, at least in the current era, take an unduly technical or restrictive approach to pleadings such that, among other things, a party is strictly bound to the literal meaning of the case it has pleaded. The introduction of case management has, in part, been responsible for this change in approach: see the observations of Martin CJ in Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82 (at [4]–[8]).

(Emphasis added.)

48    The CEPU further relies upon the comments of Martin CJ in Barclay Mowlem Construction Limited v Dampier Port Authority [2006] WASC 282; 33 WAR 82 which were cited by the Full Court in the extract above, including his Honour’s observations at [7]:

In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.

49    The CEPU submits that, in line with this authority, and consistent with the civil penalty decisions of the Full Court outlined above (see: BHP Coal at [63] and [65]; Hall at [49]-[50]) the Court should take a practical approach to the application of pleadings rules, having regard to what is required to achieve procedural fairness in the circumstances before it.

50    Consistent with this position, the CEPU submits that Marshall J’s decision in Able Demolitions should not be read as purporting to establish a broad inflexible rule to the effect that an application of the kind it brings must particularise at the outset the date and time of each contravention and the employee affected. Alternatively, if Able Demolitions did intend to impose such a rule, the CEPU submits that that decision should not be followed, having regard to the weight of the authority on which it relies, and in light of the recent decision of Colvin J in SIMPEC, which it says approved the pleading of contraventions in the manner it has pursued in this case.

51    Instead, the CEPU submits that the question before the Court is whether its statement of claim pleads the material facts which are necessary to give Zinfra fair notice of the case to be made against it, bearing in mind the case management and trial directions likely to be adopted and the form of relief sought by the CEPU. It submits that this question should be answered in the affirmative, given it has provided material facts sufficient to clearly frame and allow Zinfra to defend what it describes as its central allegations, being:

(a)    that the 2021 EA properly construed entitled employees to particular payments in particular circumstances; and

(b)    that its usual payment practice was such that it would not have paid those payments to those employees in those circumstances.

52    The CEPU submits that the matters which Zinfra points to as absent from its pleadings, such as the identity of the relevant employees, each occasion on which they worked, and the quantum of underpayment, are in the nature of particulars, not material facts, and are not required for Zinfra to defend these central allegations. It submits that it is sufficient that Zinfra will have the opportunity to be heard in relation to these matters as part of the “referee” process, which it seeks to utilise to facilitate the identification and quantification of the underpayments which actually took place, as outlined at [24] above. On these bases, it submits that the impugned pleadings should not be struck out.

53    Zinfra, on the other hand, submits that this case is on all fours with that which was before Marshall J in Able Demolitions, and the impugned pleadings should be struck out for the same reasons. In particular, it says that the CEPU have attempted to proceed by pleading global allegations which lack the material facts going to the identity of the employees affected, the circumstances relevant to their entitlements, and the dates and times of the contravention, in the manner which was criticised by the Full Court in Pryde. As a result, Zinfra claims that the pleadings do not comply with the principles emerging from the authorities outlined above, and leave it unable to put forward a proper defence, or to discern what evidence has to be introduced in response.

54    Further, Zinfra distinguishes the case at hand from what was before Colvin J in SIMPEC, on the basis that unlike the respondent in that proceeding, SIMPEC Pty Ltd , it has squarely raised these issues by applying to strike out the relevant pleadings, noting also that his Honour’s findings as to whether the applicant had properly brought its case in SIMPEC were rendered obiter in light of his prior conclusion that no contraventions were made out on the facts.

55    As a result, Zinfra submits that the Court should strike out the pleadings containing allegations with respect to the “global employee cohort” to which it objects.

56    In addition, Zinfra objects to the CEPU’s suggestion that the proceedings should be allowed to progress by way of an initial hearing as to the construction of the 2021 EA in the absence of further specification of the underpayments said to have occurred, followed by a referral to a referee to inquire into and report on the alleged contraventions against each individual employee. Zinfra submits that this approach would fail to provide procedural fairness and subvert the usual accusatorial process, in that it would only be put on notice as to the precise number of contraventions alleged and the particulars of those contraventions during the referee process, when the Court comes to assess the appropriate remedies. It contends that this is particularly unsatisfactory in light of the observations in the civil penalty cases canvassed above, including BHP Coal, Hall, and Sabapathy, which underscore the need for allegations of this kind to be pleaded clearly and precisely in proceedings of a penal nature.

Consideration of the strike out application

57    Having regard to the pleading principles outlined above and the submissions of both parties, I now turn to considering whether the CEPU’s pleadings concerning contraventions against the Employees should be struck out for the reasons contended by Zinfra. It is simplest to do so by considering the pleadings in support of each contravention in turn.

Travel time contravention

58    In support of its plea for a declaration that Zinfra has breached the 2021 EA and s 50 of the FWA by way of the travel time contravention, the CEPU pleads as follows (omitting those pleadings specifically directed to Mr Te Waaka):

9.    At all relevant times, all of the Employees have had as their “Designated Home Base” within the meaning of the Agreement, Zinfra’s premises at Greystanes in Sydney.

10.    At all relevant times, all of the Employees have been directed to work at locations which are more than 100 kilometres away from Zinfra’s premises at Greystanes in Sydney.

11.    Clause 3.4 of the Agreement deals with “Travelling”.

12.    Clause 3.4.4 deals with the Employees’ entitlements in cases where they are required to travel to work locations which are more than 100 kilometres away from the Employee’s “Designated Home Base”.

13.    Clause 3.4.4 of the Agreement required that in those circumstances the Employees were entitled:

(a)    to be paid for all time spent travelling to the work location at the beginning of the roster cycle and time spent travelling from the work location at the end of the roster cycle;

(b)    where the travel occurred during ordinary time Monday to Friday–to be paid at their ordinary hourly rate of pay;

(c)    where the travel occurred outside ordinary hours (including on a Saturday or Sunday)–to be paid at overtime rates.

14.    At all relevant times, Zinfra’s practice was to pay employees an amount equivalent to 4 hours’ pay at ordinary time rates for time spent travelling to and from their work location, regardless of how much time was in fact spent travelling.

[…]

18.    Zinfra has not paid the Employees for all time spent travelling to and from the work location as was required by clause 3.4.4 of the Agreement.

19.    Zinfra has thereby breached clause 3.4.4 of the Agreement and s50 of the FW Act.

59    It should be noted that, contrary to these pleadings, counsel for the CEPU submitted orally that its preferred interpretation of the 2021 EA was that Zinfra was required to pay employees for a minimum of 7.2 hours for travel time (being an ordinary working day), or the time actually spent travelling if this is greater than 7.2 hours. This was also the interpretation advanced in its application to the Fair Work Commission dated 27 May 2024. However, this interpretation is not what is articulated in the pleadings at [13] (extracted above), and thus should be put to one side for the purpose of determining the strike out application.

60    With this in mind, the pleadings extracted above can be reduced to the following key contentions:

(a)    the Employees were entitled under the 2021 EA to be paid for all time spent travelling to and from the work location at the start and end of each roster cycle;

(b)    Zinfra’s practice was to pay all Employees for four hours of travel time;

and consequently

(c)    Zinfra has not paid all Employees for all time spent travelling in breach of the 2021 EA and s 50 of the FWA.

61    I do not consider that the pleadings summarised at [60] above provide sufficient material facts for the Court to make a declaration of contravention in appropriate terms. At its highest, the conclusion which can be drawn from these facts is that the CEPU contravened the 2021 EA and s 50 of the FWA by failing to pay any employees who happened to travel more than four hours between their home and work location at the start and end of the roster cycle the full amount they were owed for their travel time. A declaration of contravention in those terms is impermissibly contingent, in the sense that it leaves undetermined whether the relevant contravention actually occurred among the unidentified Employees. As such, it suffers from similar flaws to the declarations considered by the Full Court in Pryde, in that it would fail to declare the existence of any particular breach: Pryde at [12].

62    I do not consider that it is acceptable, or indeed permissible, for Zinfra to be held potentially liable by way of a declaration which:

(a)    purports to identify contraventions which have taken place (or more accurately, may have taken place if and when the necessary factual finding is made) in relation to an undetermined subset of the unidentified Employees; and

(b)    is based on no more than an adverse interpretation of the 2021 EA, and an inference that, because that interpretation was applied on a day-to-day basis, there must have been a contravention.

63    This course would be particularly inappropriate given the penal nature of the present proceeding. To this end, I note that the CEPU could have sought only the payment of entitlements that are alleged not to have been provided, but has instead also sought to have this Court impose pecuniary penalties in relation to these underpayments.

64    Given that such a declaration of contravention is central to the CEPU’s case, the conclusion that its pleadings do not support the making of such a declaration demonstrates that it has failed to set out the material facts upon which it relies, and of which Zinfra must be aware in order for it to meet the case against it, particularly in light of the seriousness of the contravention alleged.

65    The problem can be illustrated by comparing these globalised pleadings to the CEPU’s pleadings insofar as they relate to contraventions against Mr Te Waaka. In addition to the pleadings concerning the Employees extracted at [58] (which relate to Mr Te Waaka as an Employee himself), the CEPU pleads in relation to Mr Te Waaka specifically:

15.     On the dates set out in Annexure A, [Mr Te Waaka] travelled between his home in Queensland and work locations in and around [Dubbo] in NSW.

16.    Zinfra paid [Mr Te Waaka] an amount equivalent to four ordinary hours’ pay in relation to his travel on those dates.

17.     Zinfra has not paid [Mr Te Waaka] for all time spent travelling to and from the work location as was required by clause 3.4.4 of the Agreement.

66    Annexure A to the statement of claim also sets out the duration of Mr Te Waaka’s travel on each of the dates identified, with each instance exceeding four hours. I note that, contrary to [16] of the pleadings extracted above, this Annexure A indicates that Mr Te Waaka was in fact paid for 7.2 hours of travel on one occasion, although this discrepancy is not presently material. It does, however, highlight the difficulties inherent in the Court making a global finding of contravention, given that Zinfra’s payment practice was apparently not in fact uniform.

67    Assuming that these pleaded facts are proven, they provide a proper basis for the Court to conclude that on each of the dates identified, Zinfra contravened the 2021 EA and thus s 50 of the FWA by failing to pay Mr Te Waaka the amounts to which he was entitled. A declaration in those terms adequately specifies the existence of particular contraventions, against which future relief can be assessed. As a result, it is apparent that the CEPU’s pleadings in relation to the allegations concerning Mr Te Waaka comply with the applicable rules, as they disclose the material facts which provide a basis for the declaration of contravention sought. As outlined above, the same cannot be said in relation to the globalised pleadings concerning the Employees.

68    The result of the above reasoning is that I accept Zinfra’s submission that, in relation to the travel time contravention (and, as will be seen, the other contraventions dealt with below), the CEPU was required to plead further material facts relating to each contravention alleged in relation to each of the Employees, such as the identity of each Employee affected, the circumstances which give rise to their relevant entitlement, Zinfra’s failure to pay that entitlement, and/or the dates on which this occurred.

69    This conclusion is consistent with the approach of Marshall J in Able Demolitions, insofar as these material facts are among those which his Honour specified as being those which should “ordinarily” be pleaded in a case of this kind: Able Demolitions [13]. However, this is not because I regard Able Demolitions as stating a broad inflexible rule concerning the matters which must always be pleaded in any application relating to a breach of an industrial instrument. To the contrary, I agree with the CEPU that the application of the rules of pleadings will be informed by the requirements of procedural fairness, which may vary between different proceedings. For example, the same requirements may not apply in proceedings in which it is possible to conclude, based on a global pleading of contravention in relation to a class of employees, that a particular contravention did in fact occur in relation to each member of that class; as happened in the litigation involving the unlawful dismissal of a large number of Qantas ground staff, all on a single day: see Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873; 308 IR 244 (Lee J) regarding whether a contravention occurred; Transport Workers’ Union of Australia v Qantas Airways Ltd (No 2) [2021] FCA 1012; 308 IR 333 (Lee J) regarding the appropriate declaratory relief; Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71; 292 FCR 34 (Bromberg, Rangiah and Bromwich JJ) dismissing the appeal from decisions of Lee J as primary judge; and Qantas Airways Ltd v Transport Workers Union of Australia [2023] HCA 27; 278 CLR 571 (Kiefel CJ, Gageler, Gordon, Edelman, Gleeson, Steward and Jagot JJ) dismissing an appeal concerning a limited aspect of the decision of the Full Court.

70    The material facts pleaded by the CEPU do not provide a basis for the declarations of contravention sought, and as a result, fail to provide Zinfra with reasonable notice of the case it is required to meet, particularly having regard to the seriousness of the alleged contraventions. Further, as will be discussed below, I do not consider that the CEPU’s proposed approach to case management mitigates this situation.

71    I do not consider that the decision of Colvin J in SIMPEC is inconsistent with this conclusion. The respondent in that case did not apply to have the pleadings in question struck out for the failure to provide sufficient material facts, nor did it appear to have submitted that this lack of specificity resulted in any procedural unfairness. That may be because the alleged contravention in that case could more easily be addressed at a higher level of generality than those alleged in the case at hand. In the absence of such an application by SIMPEC, it is unsurprising that Colvin J concluded that the claim was properly brought, but that it failed on the merits. If the respondent company’s decision not to raise the pleading point was motivated by its confidence in the merits of its defence, that confidence appears to have been well-founded.

72    Moreover, given Colvin J concluded that the CEPU’s interpretation of the relevant instrument was incorrect, his Honour was not required to grapple with any difficulties with the form of declaration which could be made in light of the material facts as pleaded.

73    Notwithstanding the approach taken by the parties in SIMPEC, in the case at hand Zinfra has applied to have the pleadings struck out, and this application must be resolved on the case that the CEPU seeks to maintain, bearing in mind the demands of procedural fairness.

74    The position is also not affected by the fact that the CEPU alleges that, pursuant to ss 535(1) and 557C of the FWA and r 3.34 of the Fair Work Regulations 2009 (Cth), Zinfra bears the onus of disproving particular allegations relating to the travel time contravention, for the reasons discussed below at [83] and following.

Meal allowance contravention

75    In relation to the meal allowance contravention, the CEPU’s pleadings (excluding those which relate only to Mr Te Waaka) are to the effect that:

(a)    the Employees were entitled under the 2021 EA to be paid a meal allowance when they worked for any period in excess of their ten-hour rostered shift;

(b)    Zinfra did not provide the Employees with a meal allowance unless they worked at least two hours in addition to their ten-hour rostered shift;

and consequently

(c)    Zinfra contravened the 2021 EA and s 50 of the FWA.

76    Again, these pleadings fail to set out the material facts necessary for the Court to make the declaration of contravention which is sought at the requisite or appropriate level of specificity. At most, assuming the CEPU’s interpretation of the 2021 EA is correct, these pleadings support a conclusion that, to the extent that any employees worked more than ten hours but not more than twelve hours, Zinfra contravened the 2021 EA and s 50 of the FWA by not paying those employees a meal allowance. Again, a declaration in these contingent terms is not an appropriate way in which to declare that Zinfra has contravened the 2021 EA and the FWA, as is necessary for the CEPU to obtain any further relief. As a result, the pleadings concerning the meal allowance contravention said to have occurred in relation to the Employees fail to set out the material facts necessary to provide Zinfra with notice of the case against it, particularly having regard to the penal nature of the present proceeding.

77    Again, this situation can be contrasted with the pleadings as they relate to Mr Te Waaka, which include a list of dates on which it is alleged that he worked beyond his ten-hour shift but was not paid a meal allowance. If proven, in combination with the globalised pleadings relating to the Employees summarised above at [75], those facts would allow the Court to make an appropriate binding declaration of contravention under s 21 of the Federal Court of Australia Act to the effect that Zinfra had committed a contravention by underpaying Mr Te Waaka on each of those instances. The same cannot be said in relation to the Employees as a class.

Ordinary hours contravention

78    In relation to the ordinary hours contravention, the CEPU’s pleadings (again, excluding those which relate only to Mr Te Waaka) are to the effect that:

(a)    the Employees were entitled to be paid for 144 ordinary hours for each 28-day roster cycle;

(b)    Zinfra in fact paid the Employees for a lesser number of ordinary hours in each roster cycle (usually 120 ordinary hours);

and consequently

(c)    Zinfra contravened the 2021 EA and s 50 of the FWA.

79    The situation in relation to this contravention is slightly different to the travel time and meal allowance contraventions. Whereas the pleadings in relation to those two allegations do not themselves permit the conclusion that a particular contravention has occurred without the assumption that some further condition is satisfied (being that the Employees travelled or worked for a particular period of time such that they incurred the relevant entitlement), the CEPU’s pleadings here seem to support a conclusion that a contravention has in fact occurred in relation to all employees and all relevant roster cycles. In this sense, it is the most “global” of the contraventions alleged, and on this basis may be argued to be more tenably capable of being appropriately captured by a “global” declaration than those considered above, as such a declaration would potentially require a lesser degree of contingency.

80    However, this alone is insufficient to allow the Court to make a proper declaration of contravention, given that there is no specification of which roster cycles in particular this contravention relates to, the number of roster cycles in question, and which of these cycles are said to have been worked by which Employees. As a result, the CEPU has again failed to sufficiently plead the necessary material facts in support of the ordinary hours contravention against the Employees, which are necessary for the Court to be able to make declarations specifying the particular contraventions which are held to have occurred. Zinfra is in the dark as to the specific case which it is required to answer, a situation which is particularly unacceptable given the seriousness of the allegations against it.

81    As is the case in relation to the travel time contravention, this conclusion is not affected by the CEPU’s pleadings regarding the record keeping contravention and its purported impact on the onus of proof, for the reasons discussed below at [83] and following.

82    Once again, the same conclusion does not extend to the pleadings concerning this contravention in relation to Mr Te Waaka. The CEPU pleads that Mr Te Waaka was paid for only 120 ordinary hours of work in respect of the roster cycles which commenced on 5 March 2024, 1 April 2024 and 30 April 2024. If proven, this additional pleading, in combination with those relating to the Employees at large, would permit the Court to make a binding declaration under s 21 of the Federal Court of Australia Act that Zinfra contravened the 2021 EA and the FWA by not paying Mr Te Waaka for 144 hours of ordinary work in each of those roster cycles.

The record keeping contravention

83    The CEPU’s pleadings contain a further allegation, being the record keeping contravention, that Zinfra failed to maintain records relating to the overtime hours worked by the Employees when they were travelling, in circumstances where it was required to do so under s 535(1) of the FWA. No relief is sought in respect of this allegation. The CEPU instead relies upon these pleadings only to engage the reversed onus of proof provision in s 557C(1) of the FWA in aid of its efforts to prove the travel time and ordinary hours contraventions.

84    The pleadings setting out the record keeping contravention and its purported impact on the onus of proof are amongst those which Zinfra seeks to strike out by the present application. However, the parties, in their written and oral submissions, did not specifically address the sufficiency of these pleadings to the same degree of granularity as was employed in relation to those concerning the three contraventions considered above. Given that these pleadings serve no purpose other than to support the other contraventions alleged to have occurred against the Employees, it is appropriate that if the pleadings in support of those other contraventions are struck out, the same result should follow in relation to the record keeping contravention. This is also consistent with Zinfra’s submission, at the outset of the hearing, that:

In terms of the order that is sought, it doesn’t seem to be in dispute between the parties it’s a job lot. Those paragraphs are all sought to be struck out and the union doesn’t say this particular paragraph should be saved for any particular reason. It’s a simple strike out application in that regard.

85    The CEPU did not expressly take issue with this submission. Although certain distinctions between the three main categories of contravention did emerge over the remainder of the hearing which warranted a separate consideration of the pleadings in relation to each (reflected in the approach I have taken above), no such distinguishing factors were raised in relation to the record keeping contravention.

86    It is, however, convenient to deal here with the CEPU’s submission that the inclusion of the record keeping contravention impacts the analysis of the sufficiency of its pleadings in relation to the travel time and ordinary hours contraventions, such that they should not be found to be deficient in relation to the material facts, as I have otherwise found above. For the reasons which follow, that submission must be rejected.

87    Section 535(1) of the FWA requires employers to keep employee records of the kinds prescribed by the Fair Work Regulations 2009 (Cth), including r 3.34 which provides:

For subsection 535(1) of the [FWA], if a penalty rate or loading (however described) must be paid for overtime hours actually worked by an employee, a kind of employee record that the employer must make and keep is a record that specifies:

(a)    the number of overtime hours worked by the employee during each day; or

(b)    when the employee started and ceased working overtime hours.

88    The CEPU pleads that Zinfra has breached this provision by failing to maintain records of the overtime hours worked by the Employees in travelling to and from work sites. This is presumably based on the understanding that, if Zinfra did not consider that the Employees were entitled to be paid in full for the time spent travelling, then it had no reason to make a record of that time.

89    The CEPU then relies on s 557C(1) of the FWA, which has the effect of reversing the onus of proof for allegations made in a proceeding regarding a matter in relation to which the employer was required to, but did not, maintain a record, as follows:

If:

(a)    in proceedings relating to a contravention by an employer of a civil remedy provision referred to in subsection (3), an applicant makes an allegation in relation to a matter; and

(b)    the employer was required:

(i)    by subsection 535(1) or (2) to make and keep a record;

[…]

in relation to the matter; and

(c)    the employer failed to comply with the requirement;

the employer has the burden of disproving the allegation.

(Emphasis added.)

90    In Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627; 290 IR 331, Colvin J addressed the policy underpinning s 557C of the FWA, and described its operation as follows:

[11]    Record keeping obligations are an important part of the protections afforded by the Fair Work Act. As stated by Reithmuller FM in Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258 at [66]-[67] in dealing, prior to the enactment of s 557C, with the importance of compliance with the obligation under the Regulations to issue pay slips to employees:

The need to ensure compliance, particularly with respect to vulnerable workers, such as those on work visas, those who come to Australia without strong language skills, and those with little education is crucial to a just society, and the avoidance of exploitation.

Whilst the record keeping obligation with respect to pay slips only appears in the Regulations, its central importance in industrial matters cannot be underestimated. Proper pay slips allow employees to understand how their pay is calculated and therefore easily obtain advice. Pay slips provide the most practical check on false record keeping and underpayments, and allow for genuine mistakes or misunderstandings to quickly be identified. Without proper pay slips employees are significantly disempowered, creating a structure within which breaches of the industrial laws can easily be perpetrated.

[12]    These statements have been cited with approval in this Court: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [548] (Katzmann J) and Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832 at [55] (White J).

91    The legislative policy behind s 557C was similarly considered by Jackson J in Gallagher v AAG Labour Services Pty Ltd [2020] FCA 1753. The applicant in that proceeding had brought a claim for underpayments in contravention of the relevant employment agreement and award, as well as consequential breaches of the FWA. The applicant also alleged that the respondent had failed to keep records in relation to her hours of work, in contravention of s 535(1) of the FWA. The respondent brought an interlocutory application seeking further particulars of the applicant’s claim, and in particular, the hours of work which she alleged that she had performed. The applicant submitted that those particulars were not required, given that s 557C placed the burden of proof on the respondent, as a consequence of the alleged contravention of s 535(1) of the FWA.

92    In dealing with this application, Jackson J indicated that, setting aside the application of s 557C, the applicant would ordinarily be required to furnish further particulars. His Honour then addressed the effect of s 557C of the FWA as follows (at [18]):

In my view, s 557C of the FWA does not relieve [the applicant] of the obligation to give the respondents fair notice of the basis on which she says she worked for the hours she has claimed. If s 557C applies, it reverses the burden of proving the allegations; it does not say anything about the level of detail an applicant should give in stating the allegations in her pleading. If anything, a requirement for the respondents to disprove the allegations would throw into even sharper relief the need for the respondents to know with particularity what the allegations are. The provision evidently reflects a legislative policy that if an employer has breached the FWA and the [Fair Work Regulations] by failing to keep records of things such as hours worked, the employer should not be able to take advantage of that breach so that a claim for underpayment is defeated due to a lack of records. But that says nothing about the degree of specificity with which the claim should be articulated, as distinct from proved, in the first place. [The applicant’s] submissions made much of the impossibility of her being specific about days and hours worked due to what she says is the respondents' failure to keep records of those things. The answer to that is found in what has been said above. If her claim is not based on such specifics, and it appears it is not, then the lack of specific records will not inhibit her ability to particularise the basis on which she calculates the hours she does claim she worked.

(Emphasis added.)

93    For present purposes, the key relevance of ss 535(1) and 557C(1) of the FWA as discussed above is that the CEPU submits that they impose upon Zinfra the burden of disproving the travel time and ordinary hours contraventions. As a result, the CEPU submits that it is not required to provide any particulars in relation to those matters, at least until the question of onus is resolved, and then only if it is resolved against it, by virtue of r 16.03(2) of the Federal Court Rules, which provides that “a party need not plead a fact if the burden of proving the fact does not lie on that party”.

94    I do not consider that s 557C(1) operates in this way, for a number of reasons.

95    First, s 557C(1) only places on an employer the onus of disproving allegations which concern the “matter” in relation to which it has failed to maintain the required records. That “matter” is here the overtime hours worked by each Employee.

96    It was not explained by the CEPU in their written or oral submissions, or articulated in its pleadings, how the ordinary hours contravention is said to contain an allegation concerning the overtime hours worked by the Employees. As a matter of logic, it is difficult to see the basis on which this is contended. The ordinary hours contravention, as I understand it, involves the allegation that the Employees were entitled to be paid for a minimum number of ordinary hours, regardless of how many overtime hours they worked and/or were paid for. As such, I do not consider that s 557C(1) operates to reverse the onus of proof in relation to any part of the ordinary hours contravention.

97    The necessary connection is clearer in relation to the travel time contravention. The CEPU, by the record keeping contravention, pleads that some of the hours which the Employees spent travelling were overtime hours, and that that Zinfra did not record these hours in compliance with r 3.34 of the Fair Work Regulations. As a result, it claims that Zinfra breached s 535(1), and bears the burden of disproving the travel time contravention pursuant to s 557C(1) of the FWA.

98    However, the operation of s 557C(1) in relation to the travel time contravention is more limited. Given that the “matter” in question is the overtime hours worked by the Employees, the onus of proof can only be reversed in relation to the travel time contravention insofar as it involves an allegation regarding those overtime hours. The CEPU’s pleadings in relation to the travel time contravention do not specifically include any allegations about the hours travelled by the employees (this being one aspect of the pleadings’ deficiencies discussed above), whether overtime or otherwise. However, the pleadings in relation to the record keeping contravention do include the following, which can be treated charitably as the CEPU’s allegation in relation to the travel time contravention insofar as it pertains to the Employees’ overtime hours of work (at [33] of the statement of claim):

Some of the hours worked by employees in travelling to and from work sites were overtime hours.

99    If s 557C of the FWA does in fact affect the burden of proof in relation to the travel time contravention, it is this allegation, or an unstated allegation in similar terms, which represents the bounds of what Zinfra would therefore be required to disprove, with the CEPU left to prove the remainder of the travel time contravention in the ordinary manner.

100    Second, the reversal of onus is only engaged, per the portion of s 557C(1)(a) emphasised at [89] above, if an applicant makes an allegation in relation to a matter. If there is any conflict between s 557C(1), and r 16.03(2), which provides that “a party need not plead a fact if the burden of proving the fact does not lie on that party”, the former must prevail, including because the latter rule has no application unless the former provision is first invoked. As a result, the party seeking to invoke s 557C(1) must at least make a specific allegation in relation to the “matter” in question in order for the employer to bear the burden of disproving it. The allegation must be reasonably specific to enable the party upon whom the burden is cast to endeavour to discharge it (or to accept that it has taken place): Gallagher at [18].

101    In this case, the CEPU was required to make a specific allegation in relation to the overtime hours worked by the Employees in order for the burden of disproving that allegation to be imposed upon Zinfra, and that allegation must be made with sufficient specificity to allow Zinfra to disprove it. With this in mind, it is clear that the CEPU’s pleadings in relation to the allegation which Zinfra must disprove are insufficient to invoke s 557C.

102    Currently, Zinfra is unaware as to various aspects of the relevant allegation, including the number of employees alleged to have travelled outside of ordinary hours, their identities, the general time frame in which this is said to have occurred, and the number of such instances. Zinfra is not required by s 557C to disprove an allegation which has not been properly put in the first place. This result does not diminish the legislative policy which underpins s 557C, being to prevent employers from utilising poor record keeping as a shield from liability. Regardless of whether Zinfra in fact kept records of the kind relevant to the record keeping contravention, it would be unable to respond to the allegation as currently pleaded, and the CEPU’s failure to properly articulate its allegation does not flow from any such record keeping failure.

103    As such, I do not consider that the allegation of the record keeping contravention affects the conclusions reached above regarding the deficiency of the CEPU’s pleadings.

The CEPU’s proposal for the conduct of the proceeding

104    The result of the above analysis is that the pleadings concerning the globally alleged contraventions against the Employees fall foul of r 16.02(1)(d), on the basis that they do not disclose the material facts necessary to give Zinfra fair notice of the case to be made against it at trial.

105    Nonetheless, concerns which arise from the face of a pleading may be alleviated by the way in which a case will be conducted. Such an approach is not only justified by the authority referred to by the CEPU above concerning “modern case management principles”, but also by the underlying purpose of the pleading rules, being the pursuit of procedural fairness: Akhil Holdings at 286-287. As outlined above, the CEPU submitted that, notwithstanding its failure to plead certain material facts at the outset, Zinfra will be afforded procedural fairness on the basis that:

(a)    first and initially, these further facts do not need to be specified for Zinfra to engage in a dispute regarding the appropriate construction of the relevant provisions of the 2021 EA; and

(b)    second and subsequently, assuming the CEPU’s construction prevails, Zinfra would then have the opportunity to be heard in relation to the further particulars of each alleged contravention through the conduct of the referee’s inquiry, and during the adoption hearing before the Court relating to the referee’s report.

106    I do not consider that proceeding in this way would alleviate the denial of procedural fairness to Zinfra brought about by the CEPU’s failure to plead these material facts at the outset.

107    First, in relation to the initial stage of the CEPU’s proposal outlined above, I accept that Zinfra is theoretically able to make submissions about the proper construction of the 2021 EA as a matter of law without knowing the further facts required to identify the specific contraventions which may arise depending on the outcome of that argument. However, having regard to the penal nature of these proceedings, I do not consider that procedural fairness permits this to occur, particularly over Zinfra’s objection. In the ordinary course, Zinfra would not be required to defend the construction of the 2021 EA without knowing such basic facts like the number of occasions on which a breach is alleged to arise if the CEPU’s construction is accepted, and it should not be required to do so here. Additionally, while, conceptually at least, some questions of statutory construction may not need much, if any, factual context, I do not consider that this is true of the present context. I hasten to add that this does not mean that Zinfra needs to be on notice at the outset as to the quantum of compensation and penalties which might be sought by the CEPU in relation to the contravention, at least in any precise way, as distinct from the material facts relating to the existence and nature of the contraventions in the first place.

108    It is also no answer to claim that Zinfra may be able to determine these matters for itself by interrogating its own employment records and applying its understanding of the construction of the 2021 EA advanced by the CEPU to those records. To claim that Zinfra is afforded procedural fairness in those circumstances would amount to an unacceptable inversion of the accusatorial process, particularly having regard to the penal character of the present proceedings. It is for the CEPU to put its allegations, and for Zinfra to defend them. In any event, such an assessment may be meaningfully inaccurate insofar as it relies on Zinfra’s own understanding of the CEPU’s position, in respect of which there appeared to be some uncertainty during the hearing of this application.

109    Second, in relation to the CEPU’s submission that Zinfra would be afforded the opportunity to be heard as part of the referee’s inquiry, I do not consider that that would amount to the same degree of procedural fairness which would be provided if the specific contraventions alleged were set out in the pleadings at the outset of the proceedings, subject to evidence adduced by both parties, and ultimately adjudicated upon by the Court in the usual manner. Again, this is particularly unsatisfactory given the seriousness of the allegations, being the contravention of civil remedy provisions in the FWA, and the material ramifications which would follow if they were proven.

110    It should also be observed that, generally, parties to an inquiry by a referee are required to provide a statement of the findings of fact and law for which they contend: r 28.65(7) of the Federal Court Rules. This reflects the fact that the proper purpose of referral to a referee is the resolution of discrete issues arising in proceedings between the parties, as opposed to the discovery of what the issues in contention actually are. It is apparent that the CEPU would not be able to provide such a statement, for the same reasons that it is unable to set out these facts in its pleadings. This impediment is symptomatic of the fact that the CEPU attempts to use the referee process for something other than its intended purpose.

111    The above answers to the CEPU’s submissions are each individually sufficient to dispense with any submission that the procedure proposed by the CEPU alleviates the effect of its defective pleadings. However, it is worth observing that I consider it doubtful that it would be open to the Court to pursue this course in any event. This is because the statutory power relied upon by the CEPU for the appointment of the referee, being s 545(1) of the FWA, is enlivened only if the court is “satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.”

112    I have already found that the material facts currently pleaded by the CEPU, even if proven, would not support the making of an appropriate declaration of contravention in relation to the Employees. The CEPU proposed that, if this were the case, the power under s 545(1) could still be enlivened if I were to declare that the proper construction of the 2021 EA was as contended by the CEPU, and to record in my reasons that, in light of this construction and the evidence regarding Zinfra’s payment practices, I was satisfied that some contravention had occurred, notwithstanding my inability to identify the particular contravention at that stage. Under this approach, formal declarations of contravention would presumably follow at a later stage, after the referee’s inquiry.

113    I do not consider that s 545(1) can properly be enlivened in this way. The inclusion of the condition that the Court be satisfied of the existence of a previous or proposed contravention reflects that the provision empowers the Court to make “appropriate preventative, remedial and compensatory orders” in relation to an identified contravention: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 at [110] (Keane, Nettle and Gordon JJ), see also at [23] (Kiefel CJ). The order for referral to a referee is not properly considered an order of this kind.

114    More generally, I consider that to proceed with a referee’s inquiry as to the specific contraventions committed by Zinfra following nothing more than a declaration that the 2021 EA is properly to be interpreted as contended by the CEPU, and to impose penalties on the CEPU for any such contraventions identified in that manner, would amount to a fundamental inversion of the accusatorial system. It cannot be right that it is for Zinfra to, in effect, prove that a general presumption that it has contravened the 2021 EA and the FWA does not apply to a particular employee through its participation in an inquiry undertaken by a referee at its own expense. Putting to one side the potential application of s 557C to particular aspects of the allegations, it is for the CEPU to plead with sufficient clarity its case against Zinfra, and to prove it. Zinfra is entitled to adduce no evidence at all until the close of the CEPU’s case, not even by affidavit, and indeed does not have to do so even at that stage if that is the forensic decision made. That has been a longstanding practice in this Court, consistent with the accusatorial process being invoked.

115    Moreover, if a referee were ordered to proceed in the manner contended for by the CEPU, in advance of any declaration of contravention by the Court, then its role in investigating, collating and reporting on Zinfra’s records would become one focussed not only on quantum, but also on liability. This is not an assessment that can be, or at least should be, delegated to a referee. Such a determination not just of quantum, but of liability, is too much of a delegation of a responsibility at the core of the judicial function. I consider that this should be determined by a judge. Mere ratification of a conclusion to that effect by a referee is a bridge too far. Again, I hasten to add that this does not in the same way attach to the use of a referee to determine the quantum of compensation once a contravention has been established as that does not entail delegating the determination of liability.

Conclusion

116    The result of the reasoning above is that Zinfra’s interlocutory application is successful, insofar as it relates to the globalised pleadings alleging contraventions against the Employees at large. Accordingly, paragraphs 5, 6, 7, 9, 10, 12, 18, 23, 24, 25, 27, 30, 31, 32, 33, 34, 35, 36, 37, 39, 40, 41, 44, 45 and 46 of the statement of claim must be struck out. However, a number of these paragraphs also appear to be relied upon by the CEPU in relation to the contraventions alleged to have been committed against Mr Te Waaka specifically. For example, the CEPU does not explicitly plead that Mr Te Waaka had particular entitlements under the 2021 EA which it alleges were not paid, but instead pleads that the Employees at large had these entitlements (for example, at paragraphs 12, 23, 24, 37, 39 and 40). As such, I will largely grant the relief sought by Zinfra, but also grant the CEPU leave to replead insofar as it is necessary to maintain its claims in relation to Mr Te Waaka. The parties will be directed to confer and submit agreed or competing draft orders to give effect to this outcome, with 14 days of delivery of this judgment, or such further time as may be allowed if the parties so seek.

Costs

117    In the event of being successful in its application, the respondent seeks the costs of the application, on an indemnity or alternatively the standard basis.

118    The present proceedings are in relation to a matter arising under the FWA. As such, s 570 of the FWA provides that the CEPU can only be ordered to pay costs incurred by Zinfra if one of the grounds in s 570(2) applies. Zinfra relies upon paragraph (b) of that subsection, which applies if “the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs.”

119    Zinfra claims the court should be so satisfied, on the basis that:

(a)    following the case management hearing on 22 November 2024, the parties understood that the CEPU would file a statement of claim which identified sufficient material facts going to the alleged contraventions with respect to an identified employee or employees; and

(b)    upon receipt of the CEPU’s statement of claim, Zinfra requested that the CEPU file an amended version which removed the global allegations relating to the Employees, and the CEPU refused this request.

120    In relation to [119(b)] above, Zinfra has filed an affidavit of Ms Amy Millar (a solicitor acting for Zinfra) affirmed on 6 March 2025. Ms Millar relevantly deposes that, following receipt of the statement of claim:

Zinfra instructed its lawyers to ask the Applicant to file an Amended Statement of Claim to remove the global Employee allegations

and that:

[a]n approach was made to the Applicant by Zinfra’s counsel to the Applicant’s counsel. Those discussions did not result in the Applicant agreeing to file an Amended Statement of Claim.

121    Additionally, Ms Millar refers to email correspondence between representatives of the parties which is annexed to her affidavit. In correspondence dated 3 March 2025, Ms Millar wrote to the solicitors for the CEPU referring to “discussions between Counsel” to the effect that “the Applicant does not intend to file an amended statement of claim”, and requested that the CEPU confirm this position. The response provided on the same day indicated that the CEPU was “not aware of any recent discussions between Counsel”, and that, in any event, it “does not intend to file an amended statement of claim”.

122    Based on this evidence alone, I am unable to conclude that Zinfra did in fact make the request referred to at [119(b)] above. Further, even if such a request was made, there is no evidence as to the terms in which it was expressed, including, for example, whether the precise amendments sought are those captured by the present application, and whether the request was accompanied by an adequate explanation of the basis on which Zinfra took this position.

123    In relation to [119(a)] above, Zinfra relies upon various extracts from the transcript of the case management hearing on 22 November 2024, which is also annexed to the affidavit of Ms Millar. This case management hearing canvassed multiple issues between the parties, but of present relevance was that Zinfra sought an order for the CEPU to file and serve a statement of claim in place of its concise statement.

124    It is true that the complaints raised by Zinfra regarding the concise statement, which it sought to address by applying for an order for a statement of claim, bear a large degree of overlap with the complaints that have now been again ventilated through its interlocutory application. For example, in relation to the travel time contravention, counsel for Zinfra submitted at the case management hearing:

So, there’s no pleading here of which employees. There’s no pleading here of which designated home base they come from. There’s no pleading here about the time spent from their designated home base. And ultimately, there is no pleading that allows us to ascertain how many contraventions my client has allegedly engaged in, and how much compensation is payable. […] We’re entitled to know in civil penalty proceedings those material facts that are specified. This is a civil penalty proceeding, your Honour, and that is a complex factual question and a complex legal one. And so all we are asking for is, well, can you just plead that out?

125    However, the specific request made by Zinfra, by way of submissions to the Court, was for the CEPU to prepare a statement of claim which pleaded in more detail the allegations relating to at least one identified employee:

Now, I apprehend the complaint is, well, we want relief in respect of everybody. And that is fine. But still, the union has an obligation to give the best particulars or pleadings they can. They have a member, clearly, that has raised this complaint – they can do that. That gives us the concrete to road test the following propositions. Where’s that employee’s home base? How long did they travel? When did they travel? And what’s their contract of employment? Because that might affect the proposition as well.

[…]

I just think that we can get this on the rails now, properly, if Mr Fagir can just articulate at least one member to allow us to have some concrete and keep this in a situation where it’s not hypothetical. So that’s why we have pushed for a statement of claim, your Honour.

126    The CEPU has taken this step in relation to Mr Te Waaka. Whilst the CEPU continued to maintain the global allegations in relation to the Employees in parallel, it was not explicitly stated at the case management hearing that these allegations should be removed altogether. In addition, it is at least arguable that the CEPU’s submissions in support of those pleadings had not been fully ventilated following the case management hearing. As such, my view is that the CEPU’s approach is not so unreasonable as to enliven the possibility of a costs order under s 570(2)(b) of the FWA. Such an order represents a substantial deviation from the usual rule under the FWA that each party bears its own costs and is only warranted in exceptional circumstances: Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954 at [7]-[8] (Bromberg J). I do not consider that the present circumstances meet that description.

127    Accordingly, there should be no order as to costs.

Associate:

Dated:    10 October 2025

ANNEXURE A