Federal Court of Australia

Construction, Forestry and Maritime Employees Union v GC Crane Hire Pty Ltd as Trustee for GA Caelli Discretionary Trust [2026] FCA 793

ORDERS

THE COURT ORDERS THAT:

1.    There be judgment in part for the applicant.

2.    Within 28 days of these orders and pursuant to s 545(1) of the Fair Work Act 2009 (Cth), the respondent pay:

(a)    $5,084.30 to Mr Leonard Auld; and

(b)    $7,130.42 to Mr Peter McHenry,

together with interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) and/or s 547(2) of the Fair Work Act 2009 (Cth), such interest to be calculated in accordance with the court’s reasons for judgment.

3.    The matter be listed for a case management hearing on a date to be fixed.

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

REASONS FOR JUDGMENT

SNADEN J:

1. Introduction

1    Mr Leonard Auld and Mr Peter McHenry are both former employees of the respondent (“GC Cranes”). Their employment was terminated with effect from 27 September 2023 for reasons of redundancy. Each was (or was eligible to be) a member of the applicant (the “Union”), which was and remains an organisation within the meaning given to that term by the Fair Work Act 2009 (Cth) (the “FW Act”).

2    GC Cranes is or was the operator of a crane hire business. At relevant times, it maintained divisions as between its fixed (or tower) cranes business and its mobile cranes business. Each of Mr Auld and Mr McHenry was employed exclusively within the latter, which, prior to 27 September 2023, comprised of six or seven employees. The terms and conditions pursuant to which each was so employed were contained within (perhaps amongst other instruments) what was known as the GC Crane Hire Pty Ltd as trustee for G A Caelli Discretionary Trust and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023 (hereafter, the “EA”). The EA was an enterprise agreement that was made and approved pursuant to the provisions of pt 2-4 of the FW Act.

3    By an amended originating application dated 12 December 2025, the Union moves the court for declaratory, compensatory and penal relief in relation to multiple instances of conduct in which it alleges that GC Cranes engaged in contravention of the EA (and, thereby, in contravention of the FW Act). That conduct is explored in more detail below; but, broadly and for summary purposes, is said to have assumed the following forms, namely:

(1)    GC Cranes’s failures to pay Mr Auld and Mr McHenry at prescribed rates, with applicable allowances or loadings, for all of the hours that each worked;

(2)    GC Cranes’s failure to pay in respect of Mr Auld and Mr McHenry certain amounts referable to superannuation;

(3)    GC Cranes’s failure to engage in consultation prior to dismissing each of Mr Auld and Mr McHenry from his employment;

(4)    GC Cranes’s failure to encourage its employees to express their interest in volunteering to have their employment terminated (and, more specifically, to do so in advance of dismissing each of Mr Auld and Mr McHenry from his employment);

(5)    GC Cranes’s failure to afford each of Mr Auld and Mr McHenry notice of his dismissal;

(6)    GC Cranes’s failure to pay each of Mr Auld and Mr McHenry sums due under the EA in consequence of his dismissal (particularly, sums representing payment in lieu of notice of redundancy and payment for accrued leave entitlements); and

(7)    GC Cranes’s ongoing failure to pay each of Mr Auld and Mr McHenry at the rate specified in the EA for the time that he has waited for the payment of his other outstanding entitlements.

4    Insofar as that conduct (other than the conduct referred to in (7) above) is said to have resulted in Mr Auld and Mr McHenry being paid less than what the EA required that they be paid, the total amount of those alleged underpayments comes to $15,968.11 in respect of Mr Auld and $10,828.03 in respect of Mr McHenry. GC Cranes admits that it indulged in some of that underpayment conduct; and, more significantly, that it did so in contravention of requirements imposed upon it by the EA. Prior to the matter’s progressing to trial, it made payments to Mr Auld and Mr McHenry totalling $783.53 (plus interest) in respect of some of what it admits in that regard. Insofar as concerns amounts by which it is alleged that Mr Auld and Mr McHenry were underpaid, the sum total of what remains in dispute is $26,012.61. Additional sums (totalling $13,026.00) are sought (and disputed) in respect of compensation for losses associated with the alleged failure to provide notice of termination (or part thereof) to each of Mr Auld and Mr McHenry. Thus, excluding the “waiting time payments” to which attention will shortly turn, the total amount that is sought in compensation is $39,038.61.

5    Insofar as concerns the claims that GC Cranes acted in contravention of cl 17.8 of the EA (which required the making of a payment in lieu of notice of dismissal for reasons of redundancy), it is said that those contraventions were “serious contraventions” within the meaning given to that phrase by s 557A(1) of the FW Act (which is denied by GC Cranes).

6    Additionally to the sums outlined above, the Union advances much more significant claims under what the pleadings describe as the EA’s “Waiting Time Payment Term”. It is said that GC Cranes is liable to pay in respect of each of Mr Auld and Mr McHenry a sum calculated by reference to the period of time that has elapsed since he was entitled to be paid the other amounts that he has been underpaid. Those “waiting time payment[s]” are said to be equivalent to what each man would receive for eight hours’ work for every day (including Saturdays and Sundays) that has elapsed since those other amounts became due. During the trial, that amount was calculated (without apparent arithmetic controversy) to be $421,000.32 for each man.

7    For the reasons that follow, I am satisfied that:

(1)    there inhered no contravention in GC Cranes’s omitting to pay to Mr Auld and Mr McHenry any accrued personal and/or carer’s leave on termination;

(2)    GC Cranes was not required to give Mr Auld or Mr McHenry actual notice of termination (as opposed to, or in addition to, payment in lieu thereof);

(3)    by failing to pay various of the other underpayment amounts that remain in dispute, including those in lieu of notice, GC Cranes conducted itself in contravention of the EA;

(4)    ahead of dismissing each of Mr Auld and Mr McHenry from his employment, GC Cranes did not fail as alleged to engage in required consultation—but did fail to invite volunteers for redundancy, as the EA required;

(5)    there was no “serious contravention” as alleged; and

(6)    the part of the EA pursuant to which the “waiting time payment” claims are advanced is void or otherwise invalid, and, for that reason, cannot ground those claims or any liability on GC Cranes’s part to make the payments that are their subject.

8    It is appropriate to make orders requiring that GC Cranes pay to Mr Auld and Mr McHenry the sums that it ought already to have paid them, together with interest.

9    As the parties envisaged, it will be necessary to list the matter for further hearing to consider what, if any, additional remedies (including penalties) should be imposed in respect of the unlawful conduct in which I have accepted that GC Cranes engaged.

2. The proceeding

10    The matter was commenced by an originating application dated 4 June 2024. The Union’s claims, particularised in greater detail below, are set out in an amended statement of claim dated 12 December 2025.

11    The matter proceeded to trial in December 2025. The Union led evidence from Mr Auld and Mr McHenry, as well as from two of its own officials, Mr Martin Murphy (an organiser engaged within the Victoria-Tasmania branch of the Union’s Construction and General Division) and Mr David Vroland (Head of Legal of that same branch). All gave evidence by affidavit and none was cross-examined.

12    The Union also read part of an affidavit that had been affirmed on GC Cranes’s behalf by its General Manager, Mr George Micevski. Mr Micevski was originally slated as a witness for GC Cranes; but, for reasons that aren’t important, GC Cranes did not ultimately lead evidence from him.

13    It instead led evidence from Mr Peter Healy, its Operations Manager; and Ms Shellie Tempany, its Payroll Administrator. Again, that evidence was received in affidavit form. Only Ms Tempany was cross-examined.

14    Other documentary evidence was tendered over the course of the trial. To the extent necessary, it is referred to in the analysis below.

15    GC Cranes’s defence of the matter raises, in part, a question arising under the Constitution: namely, whether cl 16.1 of the EA purports, as an incident of the exercise of executive or statutory power, to visit consequences that fall uniquely within the purview of judicial authority. That being the case, notices under s 78B of the Judiciary Act 1903 (Cth) were duly served upon the respective attorneys- and solicitors-general of the states, territories and the Commonwealth. As is common, none was minded to intervene.

3. The statutory framework

16    The Union’s claims are advanced pursuant to the provisions of div 2 of pt 4-1 of the FW Act. Broadly, those provisions confer upon the court powers to grant various forms of relief in respect of conduct in which it is satisfied that a respondent has engaged in contravention of a “civil remedy provision”. Amongst those species of relief are orders requiring the payment of compensation (FW Act, s 545) and orders requiring the payment of pecuniary penalties (FW Act, s 546).

17    Section 539(1) identifies each of the provisions of the FW Act that qualifies as a “civil remedy provision”. Amongst them is s 50 of the FW Act, which provides (and, at material times, provided) as follows, namely:

50 Contravening an enterprise agreement

A person must not contravene a term of an enterprise agreement.

Note 1:     This section is a civil remedy provision (see Part 4-1).

Note 2:     A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).

18    Sections 51 to 54 of the FW Act regulate the circumstances in which an enterprise agreement applies in respect of a person’s employment. Application, in that sense, is a pre-requisite to any potential contravention. It is not in dispute that the EA applied in respect of GC Cranes’s employment of each of Mr Auld and Mr McHenry.

19    The court’s power to impose pecuniary penalties in respect of conduct that contravenes a civil remedy provision is not at large. Instead, the FW Act prescribes maximum amounts that might be imposed in that regard, each referrable to particular civil remedy provisions: FW Act, ss 539(2), 546(2). Insofar as concerns s 50 of the FW Act, that maximum amount is bifurcated as between conduct that does or does not amount to a “serious contravention”: conduct amounting to a “serious contravention” of s 50 of the FW Act attracts a maximum penalty of 600 penalty units; whereas conduct amounting otherwise to a contravention of s 50 of the FW Act attracts a maximum penalty of 60 penalty units.

20    Section 557A of the FW Act identifies the circumstances in which a person might commit a “serious contravention” of a civil remedy provision. It relevantly provided as follows, namely:

557A Serious contravention of civil remedy provisions

(1)     A contravention of a civil remedy provision by a person is a serious contravention if:

(a)     the person knowingly contravened the provision; and

(b)     the person’s conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons.

Note:     For the liability of bodies corporate for serious contraventions, see section 557B.

Example:     Generally, subsection 323(1) requires an employer to pay an employee the full amount payable to the employee in relation to the performance of work.

A contravention of subsection 323(1) is a serious contravention if the employer knowingly does not pay the employee in full (even if the employer does not know the exact amount of the underpayment) and that contravention is part of a systematic pattern of conduct by the employer. The systematic pattern of conduct of the employer may relate to more than one employee and may consist of different contraventions.

Systematic pattern of conduct

(2)     In determining whether the person’s conduct constituting the contravention of the provision was part of a systematic pattern of conduct, a court may have regard to:

(a)     the number of contraventions (the relevant contraventions) of this Act committed by the person; and

(b)     the period over which the relevant contraventions occurred; and

(c)     the number of other persons affected by the relevant contraventions; and

(ca)     the person’s response, or failure to respond, to any complaints made about the relevant contraventions; and

(d)     except if the provision contravened is section 535—whether the person also contravened subsection 535(1), (2) or (4) by failing to make or keep, in accordance with that section, an employee record relating to the conduct constituting the relevant contraventions; and

(e)     except if the provision contravened is section 536—whether the person also contravened subsection 536(1), (2) or (3) by failing to give, in accordance with that section, a pay slip relating to the conduct constituting the relevant contraventions.

…

(7)     If, in proceedings for an order in relation to a serious contravention of a civil remedy provision, the court:

(a)     is not satisfied that the person has committed a serious contravention against that provision; and

(b)     is satisfied that the person has contravened that provision;

the court may make a pecuniary penalty order against the person not for the serious contravention but for the contravention of that provision.

21    Section 557B expands upon those circumstances insofar as concerns conduct attributable to bodies corporate. It provides (and provided) as follows, namely:

557B Liability of bodies corporate for serious contravention

(1)     For the purposes of subsection 557A(1), a body corporate knowingly contravenes a civil remedy provision if the body corporate expressly, tacitly or impliedly authorised the contravention.

(2)     This section does not limit section 793.

22    Section 793 of the FW Act prescribes (and prescribed) the circumstances in which the conduct and/or state of mind of individuals might be attributed to a body corporate. The conduct in which a body corporate’s officers, employees or agents engage on its behalf (within the scope of their actual or apparent authority) is deemed also to be its conduct. In certain respects, the state or states of mind that they possess when they engage in it can also be deemed to be the state of mind of the body corporate.

23    Section 253 of the FW Act assumes some significance to this matter. It is found within pt 2-4 of the FW Act, which is the part that authorises the making and approval of enterprise agreements. It provides (and provided) as follows, namely:

253 Terms of an enterprise agreement that are of no effect

(1)     A term of an enterprise agreement has no effect to the extent that:

(a)     it is not a term about a permitted matter; or

(b)     it is an unlawful term; or

(c)     it is a designated outworker term.

Note 1:     A term of an enterprise agreement has no effect to the extent that it contravenes section 55 (see section 56).

Note 2:     Certain terms of enterprise agreements relating to deductions, or requiring employees to spend or pay amounts, have no effect (see section 326).

(2)     However, if an enterprise agreement includes a term that has no effect because of subsection (1), or section 56 or 326, the inclusion of the term does not prevent the agreement from being an enterprise agreement.

24    Section 172(1) of the FW Act identifies what qualifies as a “permitted matter”: FW Act, s 12. It relevantly provides (and provided) as follows, namely:

172 Making an enterprise agreement

Enterprise agreements may be made about permitted matters

(1)     An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:

(a)     matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;

…

25    Section 323(1) of the FW Act is also of some significance. It provides (and provided) as follows, namely:

323 Method and frequency of payment

(1)     An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a)     in full (except as provided by section 324); and

(b)     in money by one, or a combination, of the methods referred to in subsection (2); and

(c)     at least monthly.

Note 1:     This subsection is a civil remedy provision (see Part 4-1).

Note 2:     Amounts referred to in this subsection include the following if they become payable during a relevant period:

(a)     incentive-based payments and bonuses;

(b)     loadings;

(c)     monetary allowances;

(d)     overtime or penalty rates;

(e)     leave payments.

4. The EA

26    In order to understand the various ways in which the Union alleges that GC Cranes contravened s 50 of the FW Act, it is necessary to explore in some detail the relevant provisions of the EA.

27    The EA commenced to operate with effect from 15 November 2021. It covered (for the purposes of s 53 of the FW Act) GC Cranes, the employees of its mobile crane hire business and the Union. Its nominal expiry date was 30 June 2023 but it is common ground that it continued to apply thereafter for the entirety of (and in relation to) GC Cranes’s employment of Mr Auld and Mr McHenry. Indeed, no evidence was led to suggest that it was ever replaced, or otherwise that it ever ceased to operate in respect of those whom it covered (relevantly including GC Cranes and the Union). That being so, I shall refer to its terms in the present tense.

28    Clause 2 of the EA is entitled, “Definitions”. Relevantly, it provides as follows, namely:

2     Definitions

2.1     In this Agreement:

…

Award means the Mobile Crane Hiring Award 2010 as at1 January 2010;

…

CBUS means the Construction and Building Unions Superannuation Scheme;

…

FWC means the Fair Work Commission;

…

Ordinary Rate means the hourly rate of pay for the ordinary hours of work as listed in Appendix B.

…

Redundancy means a situation where an Employee ceases to be employed by an Employer, other than for reasons of misconduct or refusal of duty. Redundant has a corresponding meaning;

…

29    By cl 5, the EA incorporates the terms of the Award in the form that it assumed as at 1 January 2010. To the extent not addressed in that version, it also incorporates the terms of an ancestral award, namely the Mobile Crane Hiring Award 2002 as it stood at 31 December 2009. The express terms of the EA prevail to the extent of any inconsistency with those award terms: EA, cl 5.2.

30    Clause 7.2 of the EA relevantly provides as follows, namely:

7.2     The Parties to this Agreement commit themselves to ensuring that:

…

(d)     Employment should wherever possible be full time and [ongoing].

31    Clause 8 of the EA is entitled, “Severability”. It provides as follows, namely:

8     Severability

8.1     It is the intention of the Parties to this Agreement that the Agreement contains only permitted matters under the Fair Work Act.

8.2     The severance of any term of this Agreement that is, in whole, or in part, [of] no effect by virtue of the operation of section 253 of the Fair Work Act shall not be taken to affect the binding force and effect of the remainder of the Agreement.

8.3     All terms should be interpreted in a manner that would make them permitted matters.

32    Clause 11 of the EA is headed, “Consultation”. Relevantly, it provides as follows, namely:

11     Consultation

Major Workplace Change

11.1     If the Employer has made a decision to introduce a major workplace change that is likely to have a Significant Effect on a number of Employees, the Employer must notify the Employee(s) who will be affected by the decision. As soon as practicable and prior to implementation, the Employer must discuss with the relevant Employees and/or their nominated representative/s (e.g. Union or other representative) the introduction of the change; and the effect the change is likely to have on the Employees. The Employer must discuss measures to avert or mitigate the adverse effect of the change on the Employees.

11.2     For the purposes of the discussion the Employer will provide the relevant Employees and/or their nominated representative/s in writing:

(a)     All relevant information about the change including the nature of the change proposed;

(b)     Information about the expected effects of the change on the Employees: and

(c)     Any other matters likely to affect the Employees.

However, the Employer is not required to disclose confidential or commercially sensitive information.

The Employer must give prompt and genuine consideration to matters raised about the major change by the relevant Employees.

11.3

(a)     "Significant Effects" under this clause 11 include termination of employment (including redundancy), major changes in the composition, operation or size of the Employer's workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of Employees to other work areas or locations and the restructuring of jobs.

…

33    Clause 12 of the EA is headed, “Contract of Employment”. It makes provision for the engagement of employees on two bases: as “Weekly Hire” employees or as “Casual” employees.

34    Clause 13 of the agreement is entitled, “Security of Employment”. It records, amongst other things, GC Cranes’s commitment to “ensuring that all Employees are remunerated properly in accordance with” the EA.

35    Clause 15 of the EA is headed, “Notice of Termination”. It relevantly provides as follows, namely:

15     Notice of Termination

15.1     Weekly Hire - All Employees, except Casuals

If the Employer decides to terminate the employment of a weekly Employee the Employer shall give the weekly Employee the following notice:

Period of Continuous Service     Period of Notice

One year or less     One week

Over one year & up to the completion of three years     Two weeks

Over three years & up to the completion of five years     Three weeks

Over five years     Four weeks

In addition to the above notice, employees over 45 years of age with not less than two years continuous service shall be entitled to an additional week's notice.

Notice of resignation by the weekly Employee - The notice given by a weekly Employee shall be the same as that required of the Employer except that there shall be no additional notice based on the age of the weekly Employee concerned.

…

36    Clause 16 of the EA is, perhaps, the provision of most significance to this matter. It provides as follows, namely:

16     Additional Provisions

16.1     Upon termination of employment, the Employer shall pay each terminated Employee all accrued entitlements and other wages owing and provide a separation certificate within 2 business days of termination, unless otherwise agreed in writing between the Employer and Employee, or the Employee shall be entitled to claim payment for all time beyond the two working days, up to a maximum of 8 hours per day, including Saturday and Sunday, until the entitlements are paid.

16.2     Within 2 days of termination the Employer will supply the relevant paperwork to allow an Employee to access their Incolink Redundancy Fund. Within one week of termination, the Employer will comply with reporting of remaining sick days to Incolink for the purpose of Portable Sick Leave.

37    Clause 17 of the EA is headed, “Redundancy”. Although reserving for GC Cranes the ultimate right to select employees for dismissal by reason of redundancy, it nonetheless contemplates (by cl 17.3) that “Voluntary terminations will be encouraged as a first step”. The clause otherwise provides as follows, namely:

17     Redundancy

…

17.7     An Employee is entitled to access his/her redundancy payments when they cease to be employed by the Employer. The amount of the redundancy payment shall be whichever is the greater of the entitlement due under the Building and Construction General On-site Award 2010 as in force from time to time or the entitlement of the Employee under the Nominated Redundancy Fund trust deed (or under the constituting documents of any fund nominated by Incolink under this clause).

Note that the industry-specific redundancy scheme prescribed by the Building and Construction General On-site Award 2010 as in force from time to time is expressly incorporated into this Agreement.

17.8     Employees with more than 12 months continuous service, upon being made redundant, shall be entitled to receive four weeks pay at ordinary rates in lieu of notice. Employees with less than 12 months continuous service, other than casuals, shall be entitled to notice on the following basis:

Up to 3 months – 1 week

More than 3 months up to 6 months – 2 weeks

More than 6 months up to 9 months – 3 weeks

Over 9 months – 4 weeks

Provided that an Employee shall be paid in lieu of such notice or be required to work one week of such notice and be paid any balance in lieu.

17.9     Employees employed prior to the company enrolling into the Incolink fund shall be entitled to a redundancy payment of three weeks[’] pay for each year of service (pro-rata for part of a year) calculated from commencement of employment up until the date the company commenced making payments into the Employee's Incolink account. There shall be no double dipping of the redundancy/severance payment.

38    The references in cls 16 and 17 of the EA to the “Incolink Redundancy Fund” are references to a fund established for participants within the construction industry, the apparent purpose of which (amongst others, perhaps) is to facilitate the making of severance payments to construction industry employees who are dismissed from their employment by reason of redundancy. Clause 18 of the EA requires that GC Cranes register its employees with “…the relevant industry funds [namely] CBUS for superannuation, Incolink for severance pay, portable sick leave, bill payer insurance and income protection insurance, and CoINVEST for long service entitlements”. GC Cranes is and at relevant times was obliged to make all payments in respect of its employees as the terms of each fund required. Clause 21 of the EA makes the following, more detailed prescriptions in respect of redundancy contributions; namely:

21    Incolink

21.1    Redundancy Contributions

21.2    The Employer is, and will remain during the life of this Agreement, a member of the Redundancy Payment Approved Workers Entitlement Fund 2 ("Incolink Number 5 Fund") of which Redundancy Payment Central Fund Ltd ("Incolink") is trustee or an equivalent approved worker entitlement fund that is administered and/or managed by Incolink (collectively the "Nominated Redundancy Fund"), and all the employees of the Employer within the scope of this Agreement will be enrolled in the "Nominated Redundancy Fund" and be entitled to redundancy benefits in accordance with the terms of the relevant Trust Deed.

21.3     The Employer shall pay contributions to the Nominated Redundancy Fund on behalf of each employee on a weekly basis in accordance with the Trust Deed. If Incolink nominates any other fund under clause 21.5 the Employer shall pay contributions to that fund on behalf of each employee on a weekly basis and in accordance with the constituting documents of that other fund.

21.4    The liability of the Employer to pay redundancy payments to an Employee under this clause will be met by the making of the contributions on behalf of each Employee required as a member of the Nominated Redundancy Fund, or by another fund nominated by Incolink under clause 21.5.

…

21.9     Portability of Sick Leave

(a)     The Employer is, and will remain during the life of this Agreement, a participating employer in the Construction Industry Complying Portable Sick Leave Pay Scheme ("Incolink PSL Scheme") of which Incolink is trustee, and all the Employees will be enrolled in the Incolink PSL Scheme and be entitled to sick leave benefits and up to 5 days' carer's leave, in accordance with the terms of the Trust Deed and the related insurance policy.

(b)     The Employer shall pay contributions to the Incolink PSL Scheme on behalf of each Employee on a weekly basis in accordance with the Trust Deed. The contribution will be $3.00 per week. If Incolink nominates any other fund under clause 21.9(c) hereof, the Employer shall pay contributions to that fund on behalf of each Employee on a weekly basis and in accordance with the constituting documents of that other fund.

(c)     References in this clause to "Incolink PSL Scheme" include a reference to another fund for comparable purposes nominated by Incolink.

…

39    Clause 22 of the EA is headed, “Wage Rates”. It stipulates what GC Cranes is obliged to pay to its employees for the work that they perform. It does so by reference to “Appendix B” to the EA, which identifies the hourly and (for full-time employees) weekly wages to which employees are entitled for work that they perform. That rate increased in specified amounts over the first three years in which the EA operated. Appendix B also establishes a loading to be paid when crane crew work with heavier cranes (or, perhaps, cranes lifting or capable of lifting heavier loads).

40    Clause 26 of the EA is headed, “Payment of Wages”. It provides that employees’ “[w]ages and pay slip details” are to be “…made available no later than the cessation of ordinary hours of work on Thursday of each working week.” Although the EA does not itself define that term “working week” (and it is unlikely in any event that anything turns upon it), it is apparent from other evidence before the court that employees at relevant times were paid for weeks commencing on Wednesdays and ending on Tuesdays.

41    Clause 31 of the EA is headed, “Hours of Work”. Relevantly, it provides that employees’ ordinary hours of work are eight per day, worked between 6am and 6pm, Monday to Friday. Combined with the nine-day fortnight for which cl 33 provides, full-time employees’ ordinary working hours are 36 per week.

42    Other clauses of the EA make provision in familiar ways for matters such as the payment of superannuation, overtime rates of pay and allowances. It is not necessary—at least not at this stage of the proceeding—to traverse those terms in any detail.

43    The EA also makes provision for personal and/or carer’s leave: EA, cl 38. That species of leave accrues progressively from year to year. The term is generally silent as to the treatment of those accruals upon termination but specifies that, in the event that an employee is terminated but re-engaged within six months, the employee’s “unclaimed sick leave” is to be reinstated “unless these days have been notified to the Construction Industry Portable Sick Leave Scheme”. In that event, the clause contemplates that the days “…will be available from [the] scheme”.

44    To the extent that it is incorporated as a term of the EA, cl 12 of the Award supplements (or arguably supplements) that term. It is entitled, “Industry specific redundancy scheme” and relevantly provides that:

12.2    Definitions

(a)    Redundancy means any employment situation where the number of employees reasonably required by the employer exceeds the number required to perform the work which is available.

(b)    Any one of the following factors may operate to reduce the amount of work which is available:

(i)    closure of a company;

(ii)    a decline in trade or business opportunities;

(iii)    technological change or changes in the industry; or

(iv)    a decision by a company to cease providing a particular service performed by its employees in a locality or from a site or depot.

(c)    Retrenchment means termination of an employee who is made redundant in accordance with any of the circumstances covered by clause 12.2(b).

…

12.5    Other entitlements

In addition to the entitlements prescribed in clauses 12.3 and 12.4, retrenched employees are entitled to the following additional benefits:

…

(c)    accumulated sick leave to a maximum of 10 days.

5. The competing cases

45    It is convenient to identify the claims for relief that the Union presses and to do so by separating them into their constituent parts so as to identify what is and what is not in contest.

46    Insofar as they involve underpayment allegations, there are five categories by which the Union’s claims might conveniently be grouped. Specifically, the Union alleges that GC Cranes acted in contravention of one or both of ss 50 and 323(1) of the FW Act by:

(1)    failing to pay Mr Auld and Mr McHenry at their ordinary time rates of pay in relation to certain working hours;

(2)    failing to make discrete payments that the EA required by means of allowances or superannuation contributions;

(3)    failing to give Mr Auld and Mr McHenry actual notice of his dismissal and/or to pay to each a sum to which he was entitled under the EA upon the termination of his employment;

(4)    failing to pay Mr Auld and Mr McHenry, on dismissal, amounts in respect of their accrued personal leave entitlements; and

(5)    failing to pay the “waiting time payments”.

47    In respect of each, the Union moves for relief principally in the form of compensation to be made payable to Mr Auld and Mr McHenry, as well as ancillary relief in the form of declarations and penalties.

48    There are other alleged contraventions that are pressed otherwise than as claims of underpayment. In that category are the Union’s claims that GC Cranes contravened the EA (and, thereby, s 50 of the FW Act) by failing to consult with its workforce (including by means of the provision of relevant information) and failing to call for expressions of interest in voluntary redundancy (in both cases) prior to effecting Mr Auld’s and Mr McHenry’s dismissals. No compensatory relief is sought in respect of those claims; the Union instead moves for declaratory relief and the imposition of pecuniary penalties.

49    With that high-level introduction complete, it is convenient now to descend into the detail.

5.1 The ordinary time contraventions

50    The ordinary time contraventions that the Union presses comprise seven discrete episodes: three that concern Mr Auld and four that concern Mr McHenry. It is prudent to explore each of them separately and I shall do so in the order that each is addressed in the Union’s amended statement of claim dated 12 December 2025.

5.1.1 7 to 13 September 2022

51    Between 7 and 13 September 2022, Mr McHenry worked a total of 20 ordinary hours. Under the EA, he was entitled to be paid $1,264.00 for that work. Instead, GC Cranes paid him $1,204.00. Neither of those factual propositions is in contest. GC Cranes accepts that it did what it is alleged to have done; and it concedes that it did so in contravention of the EA and s 50 of the FW Act. The Union contends, further, that GC Cranes’s failure to pay what was owed at the time also sounds in contravention of s 323(1) of the FW Act.

52    After this matter was commenced, GC Cranes made good on the shortfall: on 8 July 2024, it paid Mr McHenry $66 (comprising the underpayment amount plus a small additional amount by way of interest).

5.1.2 29 June to 5 July 2022

53    Between 29 June and 5 July 2022—in his first week as an employee of GC Cranes—Mr McHenry worked a total of 16 ordinary hours. Under the EA, he was entitled to be paid $1,011.20 in respect of that work. GC Cranes instead paid him for 12 hours’ work (a shortfall of $252.80). It did so, it says, so that Mr McHenry “…might be paid for 8 hours on his first RDO, scheduled for 11 July 2022”.

54    Some explanation is appropriate. Under the EA, weekly-hire employees worked an average of 36 hours per week, comprising nine eight-hour shifts per fortnight (the tenth being a rostered day off). Mr McHenry’s commencement with GC Cranes did not coincide with the commencement of a “working week”. He only worked two of the five weekdays within it. GC Cranes appears to have taken the view that an adjustment to Mr McHenry’s weekly pay would need to be made either in respect of his first “working week” (in which there was no rostered day off) or his second “working week” (in which there was). It made the decision to impose the adjustment in respect of the first.

55    I will later return to that justification. For now, it suffices to note that GC Cranes conceded, at least by the time of the trial, that it had contravened the EA by failing to pay Mr McHenry the $252.80 described above. However, it maintains that the amount was, in effect, paid to him the following week, when he was credited with (and paid for) a full 7.2-hour rostered day off. It maintains that no order for compensation should be made.

5.1.3 24 to 30 August 2022

56    The Union alleges that, in the period spanning 24 and 30 August 2022, Mr McHenry was entitled to be paid at his weekly rate of $2,275.20. Instead, he was paid the lesser sum of $2,180.40. By that conduct, GC Cranes is said to have contravened ss 50 and 323(1) of the FW Act.

57    That there was a shortfall (of $94.80) is not denied. GC Cranes maintains that it was entitled to withhold that amount because, with its blessing, Mr McHenry left work 90 minutes early on Wednesday, 24 August 2022. It contends that it was not obliged to pay him for time that he did not work. The Union does not (or does not obviously) contest that Mr McHenry left work 90 minutes early on Wednesday, 24 August 2022. It accepts that he did so from time to time with GC Cranes’s agreement. Nonetheless, it maintains that Mr McHenry remained, as a weekly employee, entitled to be paid at the weekly rate.

5.1.4 5 to 11 April 2023

58    In respect of the period spanning 5 and 11 April 2023, the Union alleges that Mr McHenry was paid $260.52 less than what the EA required GC Cranes to pay him. It is apparent that that “working week” comprised of a rostered day off and two public holidays. Mr McHenry did not work on those days. Additionally, he took a day’s carer’s leave. There was, then, only one day during that “working week” that Mr McHenry actually worked.

59    GC Cranes accepts that Mr McHenry was paid, in respect of that week, $260.52 less than the weekly rate that was otherwise applicable. That was, it says, because he left work early on Wednesday, 5 April 2023 (by agreement). The amount of the shortfall equates to four hours’ pay at the applicable rate. That notwithstanding, GC Cranes maintains that Mr McHenry was actually absent for six hours on Wednesday, 5 April 2023.

60    As with the events of Wednesday, 24 August 2022, the Union appears not to contest that Mr McHenry was absent on Wednesday, 5 April 2023 as alleged (and it accepts that he left work early from time to time with GC Cranes’s blessing); but it maintains nonetheless that the EA did not permit GC Cranes to withhold what it withheld.

5.1.5 12 to 18 January 2022

61    In the period spanning 12 and 18 January 2022, the Union alleges that Mr Auld was entitled to be paid at his weekly rate of $2,208.96. Instead, he was paid the lesser sum of $1,840.80.

62    Again, that shortfall ($368.16) is not denied. GC Cranes maintains that it was entitled to withhold payment of that amount because, by agreement, Mr Auld had left work six hours early on Wednesday, 12 January 2022. The amount of the shortfall equates to six hours’ pay at the applicable rate.

63    Again, the Union does not (or does not obviously) contest that Mr Auld was absent from work as GC Cranes asserts. It submits that any such absence is irrelevant to the obligation that the EA imposed; and that GC Cranes’s failure to meet that obligation in full sounds as a contravention of the EA and, thereby, of s 50 of the FW Act. As with the other occasions on which Mr Auld (or Mr McHenry) are said to have departed early and received less than their usual weekly pay, that failure is said to contravene s 323(1) of the FW Act.

5.1.6 26 October to 1 November 2022

64    The period spanning 26 October and 1 November 2022 is another in which GC Cranes alleges that Mr Auld (with its consent) did not work his full suite of ordinary hours. Specifically, it says that he left work three hours early on Friday, 28 October 2022, as a result of which GC Cranes withheld $189.60 from what would otherwise have been his weekly pay. As with other similar instances, there is no (or no obvious) dispute about the amounts that were and were not paid, nor about the hours that were and were not worked. As with the other similar instances, the only issue in dispute is whether the EA operated such that GC Cranes was obliged in any event to pay Mr Auld the full weekly amount for which the EA provided.

5.1.7 5 April to 11 April 2023

65    The period spanning 5 and 11 April 2023 is another (and the final) “working week” in respect of which the Union alleges that Mr Auld was not paid the weekly rate to which the EA entitled him and GC Cranes alleges that there was no such entitlement on account of his having (by agreement) left work early (in this case, 5.5 hours early on Wednesday, 5 April 2023). The amount of the shortfall alleged is $358.22. The rival contentions are otherwise identical to those relating to the other occasions involving what GC Cranes maintains were early departures from work.

5.2 The allowance and superannuation contraventions

66    The second of the four categories of underpayment claims that the Union presses concerns the payment (or non-payment) of amounts referable to superannuation and allowances (or other special rates). All of them are admitted (which is to say that GC Cranes concedes that it engaged in the conduct by reason of which each arose and that it did so in contravention of the EA). All were the subject of corrective payments made prior to the trial. Save for in one respect (to which attention shall turn), the Union does not press for any further orders by way of compensation for any of them.

67    With all of that acknowledged, it is unnecessary to spend much time describing what is alleged and conceded. It suffices to identify the contravening conduct in summary form and the following table suffices to that end.

68    Until the week prior to the trial, the fourth underpayment appearing in the table above had not been addressed (or had not fully been addressed). GC Cranes sought to address that reality. It explained to the court that it had mistakenly made a payment of $5.79 to remedy that underpayment; and in that light, made a further payment of $10.00 to Mr McHenry, to cover the amount of $11.58 (plus interest).

69    The Union submits—and there is no evidential basis to conclude other than—that the $5.79 had been paid in satisfaction of another underpayment (being the fifth underpayment appearing in the table above). Accordingly, the underpayment of $11.58 (plus interest) has, as matters presently stand, not been the subject of full recompense. The amount of $1.58, plus interest on the entire amount, remains outstanding to Mr McHenry.

5.3 The termination contraventions

70    The third of the four categories of underpayment claims that the Union presses concerns amounts that are said to have been payable to Mr Auld and Mr McHenry upon the termination of their employment. Two entitlements are said to have gone (and to remain) unsatisfied.

71    The first concerns cl 15.1 of the EA. The Union contends that each of Mr Auld and Mr McHenry was entitled to notice of his dismissal. Based on the time that they had been employed by GC Cranes, the amount of notice that each was due was three and two weeks respectively.

72    The Union acknowledges that each of Mr Auld and Mr McHenry was given some notice—more particularly, five days’ notice—of his dismissal. Principally, the amounts that are sought by way of compensation take account of that reality (although the total notice amounts remain an alternative part of the relief for which the Union presses).

73    GC Cranes denies that it was liable under cl 15.1 of the EA to afford either of Mr Auld or Mr McHenry notice of his dismissal. It maintains that each was dismissed for reasons of redundancy and that different entitlements—including as to notice of dismissal—apply in that circumstance.

74    That leads neatly to the second source of entitlement upon which the Union relies, namely cl 17.8 of the EA. It is pressed as an additional entitlement that GC Cranes was obliged to have met when it dismissed Mr Auld and Mr McHenry from their employment. In the case of both men, that entitlement is quantified at $9,378.72 (being equivalent to four weeks’ pay).

75    The Union maintains that, by failing to pay that amount to each of Mr Auld and Mr McHenry, GC Cranes contravened cl 17.8 of the EA. By doing so, the Union says that GC Cranes contravened s 50 of the FW Act; and, more so, that the circumstances attending that contravention were sufficient to qualify it as a “serious contravention” for the purposes of s 557A of the FW Act. Section 323(1) of the FW Act is also said to have been contravened.

76    It is necessary to explore the circumstances as they were. There is nothing about them that is controversial. Mr Murphy gave evidence about a conversation that he had with Mr Micevski on or around 20 September 2023. Mr Murphy had learned that GC Cranes was (or might have been) intending “to retrench some employees who were union members”. Asked about that, Mr Murphy recalls that Mr Micevski replied, “[w]e’re not making them redundant – [w]e’re going to transfer them to casual.” Mr Murphy then suggested that that was impermissible and that GC Cranes was obliged, instead, “…to follow the redundancy procedure in the [EA]”. He told Mr Micevski that GC Cranes would “…at least have to pay them 4 weeks[’] notice”. Mr Micevski indicated, in reply, that GC Cranes was “…just going to do it”. Mr Murphy told Mr Micevski that what he (Mr Micevski) was proposing was impermissible.

77    Only a matter of days later, on 22 September 2023, each of Mr Auld and Mr McHenry received correspondence from Mr Micevski, informing him that, “[a]s of Wednesday 27th September 2023, your employment status will be changing from full time to casual” and noting “…that this decision is not based on your performance”. The letter also stated that, “[a]ll entitlements will be paid out, including RDOs, annual leave and leave loading”.

78    History records that neither Mr Auld nor Mr McHenry worked for GC Cranes after Tuesday, 26 September 2023. Both were paid amounts in late September that were or purported to be in lieu of notice.

79    GC Cranes defends the cl 17.8 claim on the basis that, by its provisions relating to the making of contributions into the Incolink fund, the EA provides for an alternative mechanism by which it might discharge its obligations to afford notice or payment in lieu of notice to employees dismissed for reasons of redundancy. That mechanism, it says, was satisfied in the case of Mr Auld and Mr McHenry.

80    Alternatively, it contends that each of Mr Auld and Mr McHenry was given some notice—albeit only five days’ notice—of his dismissal, which is properly to be accounted for in reckoning any sum that he is found to have been underpaid. Further still, GC Cranes contends that it, in fact, paid some amounts in lieu of notice to each of Mr Auld and Mr McHenry. Mr Auld, it says, was paid a sum equivalent to two weeks’ pay, whereas Mr McHenry was paid a sum equivalent to one week’s pay. In both cases, it is said that any assessment of amounts owed by way of notice of termination (or payment in lieu thereof) under the EA must properly take account of those payments.

5.4 The personal leave contraventions

81    The Union alleges that each of Mr Auld and Mr McHenry was entitled to be paid upon the termination of his employment the value (or part thereof) of his accrued but untaken personal and/or carer’s leave. In Mr Auld’s case, that entitlement is said to have been worth $5,210.40. The equivalent amount for Mr McHenry is $519.09. It is common ground that GC Cranes did not pay either gentleman any amount in satisfaction of the entitlement that is alleged. It is also common ground that, to the extent that it applied, cl 12.5(c) of the Award (as incorporated by the EA) operates so as to require payment of at least some accrued sick leave upon dismissal.

82    GC Cranes contends that the Award does not operate in circumstances where its obligations to both men in respect of personal leave were discharged by its participation in (and its making of payments to) the Incolink portable sick leave pay scheme. That is the central contest upon which this aspect of the matter rests: whether, by reason of its participation in that scheme, GC Cranes was relieved of what would otherwise have been its obligation under the incorporated terms of the Award to pay Mr Auld and Mr McHenry certain accrued personal leave entitlements upon dismissal.

5.5 The waiting time payment contraventions

83    By far the most significant of the claims that the Union advances concerns what is said to arise under cl 16.1 of the EA. It maintains that there are “accrued entitlements and other wages owing” to each of Mr Auld and Mr McHenry; and that that situation has obtained since 27 September 2023, when each was dismissed. The Union’s submission is that each of Mr Auld and Mr McHenry claims, through it (and by means of this proceeding), the entitlement to which cl 16.1 refers: that is, amounts equivalent to eight hours’ pay per day for every day (including Saturdays and Sundays) since two days after his dismissal.

84    GC Cranes denies that it is indebted as alleged to either man. That denial rests upon four alternate foundations.

85    First, GC Cranes submits that, properly understood, cl 16.1 does not operate in the manner that the Union alleges. It maintains that the reference to “accrued entitlements and other wages owing” should be understood as a reference to amounts that arise to be paid upon termination, rather than any or all amounts, known or otherwise, the payment or non-payment of which might be a subject of historical inquiry. It maintains that, on that construction, there were no such entitlements that triggered any entitlement to waiting time pay.

86    Second (and alternatively), GC Cranes submits that cl 16.1 is not a term about a “permitted matter” and, by operation of s 253(1)(a) of the FW Act, has no effect. The clause does not, it says, pertain to the relationship between GC Cranes and its employees. Rather, it contends that the clause purports to establish entitlements that, entirely and by necessity, post-date employment relationships.

87    Third (and further in the alternative), GC Cranes contends that cl 16.1 purports to impose a penalty or penalties upon it in respect of conduct in which it engages in contravention of the EA; and to do so in a way that ventures far beyond the circumstances in which the FW Act contemplates that penalties might be imposed. GC Cranes maintains that the provision is, in that sense, repugnant to the statutory scheme; to a degree that sounds in its being void of statutory force.

88    Fourth (and no less alternatively), GC Cranes contends that the clause, being an incident of executive or statutory power, purports to operate so as to permit or impose punitive sanctions upon it. That, it says, is impermissible by reason of ch III of the Constitution, which reserves (or principally reserves) as an incident of judicial power the authority to impose relief that is penal or punitive by nature.

89    There were perhaps one or two further dimensions to GC Cranes’s submissions about the operation of cl 16.1. They would seemingly only be enlivened if the court were to find that Mr Auld and Mr McHenry had an entitlement to waiting time pay under cl 16.1. They distilled to the contention that, as a matter of construction, the amounts claimable under the clause:

(1)    ought only to be claimable from the time the claim was made (rather than for “all time beyond the two working days”); and

(2)    ought to be limited in “a sensible industrial and proportionate way” that is “referable to the loss that is arising on each day” and, in the present case, to only nominal amounts.

5.6 The consultation contraventions

90    The Union’s claims extend beyond claims of underpayment. Specifically, it charges GC Cranes with having contravened the EA (and, thereby, s 50 of the FW Act) in three ways, each related to its decisions to dismiss Mr Auld and Mr McHenry for reasons of redundancy.

91    First, the Union alleges that GC Cranes proceeded to dismiss Mr Auld and Mr McHenry for reasons of redundancy without first encouraging its employees to consider or identify themselves as candidates for voluntary dismissal. Proceeding in that way, the Union maintains, amounted to a contravention of the requirement in cl 17.3 of the EA.

92    GC Cranes accepts that it was obliged to but did not call for expressions of interest in voluntary redundancy prior to dismissing Mr Auld and Mr McHenry. It accepts that, by that failure, it conducted itself in contravention of cl 17.3 of the EA and, thereby, s 50 of the FW Act.

93    The second and third allegations focus upon cl 11 of the EA. The Union contends that, by deciding to dismiss Mr Auld and Mr McHenry, GC Cranes is to be understood to have “…made a decision to introduce a major workplace change that [was] likely to have a Significant Effect on a number of Employees”. That being so, it was obliged first to do what cls 11.1 and 11.2 required, namely: enter into the discussions to which cl 11.1 refers and provide the information to which cl 11.2 refers.

94    It is common ground that GC Cranes did not do either of those things (that is, did not enter into those discussions or provide that information) before it dismissed each of Mr Auld and Mr McHenry from his employment. It is seemingly uncontroversial—and, indeed, could hardly be doubted—that their dismissal amounted, for each of them, to the imposition of a “Significant Effect” (as defined). The contest between the parties fixes upon whether or not the decision to dismiss Mr Auld and Mr McHenry was a decision to introduce a major workplace change. The Union maintains that it was; GC Cranes submits that it was not.

6. Are the contraventions made out?

95    Having now mapped the many constituent elements of the Union’s case, attention should turn to whether or not, or the extent to which, the evidence bears them out. Save for a preliminary issue that it is appropriate to deal with at a higher level of abstraction, it is convenient to do so in the same order in which the issues have already been explored.

96    The preliminary issue is this. On each occasion that GC Cranes breached s 50 by failing to pay to Mr Auld or Mr McHenry a specified sum of money, the Union alleges that it also failed to comply with s 323(1) of the FW Act. Each of those sums, it says, was payable in relation to the performance of work. It follows that GC Cranes’s failures to pay them in full (or, perhaps, at least monthly), sounded in further individual contraventions of the FW Act.

97    There was, at least at the commencement of the trial, some controversy as to whether that was so, even in respect of the contraventions of s 50 that are admitted. That position evolved, somewhat, over the course of the trial. As matters presently stand, the conceded effect of Australian Workers’ Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107, [82] (Raper, Dowling and Longbottom JJ) is that, if I find that a particular payment was not made “in full”, “in money” and within the time that the section requires (“monthly”), then it would follow that that omission would sound in contravention of s 323(1). Acknowledging GC Cranes’s formal submission to the contrary, I proceed on that basis.

98    The significance of that is this. GC Cranes was required to pay to Mr Auld and Mr McHenry various amounts under the EA. There were, on many occasions, shortfalls of varying degrees—shortfalls that were only remedied (if at all) after—and in most cases well after—the amounts fell due. That process of remediation does not address the mischief to which s 323(1) is directed. Insofar as GC Cranes failed to make payments that it was obliged to make under the EA, that failure inheres as conduct sufficient to contravene both ss 50 and 323(1) of the FW Act.

6.1 The ordinary time contraventions

99    Insofar as concerns the shortfall in the amount that Mr McHenry was paid for the work that he performed in the working week commencing Wednesday, 7 September 2022 (above, section 5.1.1), there is no contest that GC Cranes contravened the EA (specifically, cl 22.2). By doing so, it contravened s 50 of the FW Act. I so find. On the strength of my findings at [98] above, that same conduct also gave rise to a breach of s 323(1) of the FW Act.

100    I am also satisfied that GC Cranes should be understood to have contravened the same requirements by reason of its failure to pay Mr McHenry the full amount to which he was entitled in respect of work that he performed during his first “working week” (above, section 5.1.2). There does not appear to be any real basis upon which the court might conclude otherwise. GC Cranes’s defence, at least as to the awarding of compensation (to which attention will later turn), is that it paid Mr McHenry as it did so that he might qualify, in some way that has never really been explained or made apparent, for full payment for the rostered day off that was afforded to him in his second “working week”. The net result might well be that Mr McHenry was, ultimately, left in the same position in which he would have been had he been paid strictly as the EA required; but the fact remains, he was not paid strictly as the EA required.

101    By not paying him the correct amount for the work that he performed in his first “working week”, GC Cranes contravened cl 22.2 of the EA; and, thereby, s 50 of the FW Act. It also contravened s 323(1).

102    The remainder of the ordinary time contraventions in which GC Cranes is alleged to have engaged (above, section 5.1.3-5.1.7) concern occasions on which Mr Auld or Mr McHenry left work early by agreement. Mr Healy’s unchallenged evidence was that there were occasions on which Mr Auld and Mr McHenry “wanted to go home early on a shift”. They were, so Mr Healy continued, told that “…that was ok but they would not get paid for the rest of the day”, which was, thereafter and on each occasion, agreed. When that occurred, Mr Healy, “…told payroll what time they went home, and adjustments were made to their pay”.

103    Ahead of the trial of the matter, the Union asked GC Cranes to produce employment records pertaining to Mr Auld and Mr McHenry. It did so and those records were exhibited to one of Mr Vroland’s affidavits. Amongst them are a suite of hand-completed “weekly time sheet[s]”, which purport to record (amongst other things) the hours that each man worked in each of the “working weeks” over which he was employed.

104    Those records are—with one (immaterial) qualification—consistent with GC Cranes’s defence, which is to say that they record that, on the five occasions in question, either Mr Auld or Mr McHenry (as relevantly was the case) did not work full eight-hour days; but, rather, worked the shorter hours that GC Cranes alleges. The qualification is this: the two-hour day that Mr Auld worked in the period spanning 12 and 18 January 2022 was Thursday, 13 January 2022, not Wednesday, 12 January 2022. Nothing turns on that.

105    No serious challenge was mounted to any of the evidence just referenced, all of which I accept. I am satisfied (and find) that:

(1)    in the five working weeks in question, there were occasions where either Mr Auld or Mr McHenry (as relevant) sought and was given permission to leave work early, and did so on the agreed understanding that he would not be paid in respect of the time that he did not work; and that

(2)    the payroll records applicable to those occasions accurately record the hours of work that was performed on those days.

106    The Union submits that I should conclude, nonetheless, that GC Cranes’s withholding of the amounts that, on each of the five occasions in question, would have been earned had the early departures not occurred was such as to amount, in each case, to a contravention of the EA (presumably, cl 22.2 thereof). Necessarily inherent in that contention is the suggestion that Mr Auld and Mr McHenry were entitled to be paid in respect of work that they did not perform or hours that they did not work.

107    It is common ground that each of Mr Auld and Mr McHenry was employed on what the EA describes as a “Weekly Hire” basis; and, otherwise, as what the pleadings describe as a “full-time employee”. The Union’s amended statement of claim alleges—and GC Cranes’s second further amended defence admits—that, under the EA, “GC Cranes was required to pay non-shift worker employees for 36 hours at the applicable ordinary hourly rate each week during their employment”.

108    That concession would appear to reflect the terms of the EA, cl 31.1 of which nominates that “[o]rdinary hours of work will be eight (8) hours per day, Monday to Friday with the notional weekly hours based on a 36 hour week”. The reference to 36 “notional weekly hours” is a function of cl 33, which makes provision for fortnightly rostered days off (the result being that employees work nine eight-hour shifts—or 72 hours in total—per fortnight, which equates to an average of 36 hours per week). At material times, the obligation that arose under the EA appears clear enough: Mr Auld and Mr McHenry were obliged to work, and GC Cranes was obliged to pay wages for, 36 ordinary hours per week.

109    GC Cranes’s contention to the contrary, although superficially compelling, cannot stand against the text of the EA. It fixes upon the EA’s definition of “Ordinary Time Earnings” (which is said to include wages and allowances that are earned in respect of ordinary working hours) and upon the long-recognised “wage/work bargain” by which employment relationships are typically characterised. All of that is readily acceptable; but none of it is dispositive. The EA obliges the performance of a nominated, minimum amount of work and the payment, in respect of it, of a nominated, weekly amount. It neither contemplates nor permits that there may, by agreement, be some deviation from that prescription.

110    It may be accepted—and on the state of the evidence I would accept—that the withholding of the amounts that were withheld was effected upon a common understanding born of informed and mutual consent; but that cannot suffice to inoculate GC Cranes against the charge that the Union now presses. In respect of the five “working weeks” that are of present relevance, GC Cranes was obliged to pay amounts greater than what it actually paid. It could not, by contract, be relieved of that obligation. Authority for that elemental proposition is not difficult to find: Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 421 (Brennan CJ, Dawson and Toohey JJ).

111    It necessarily follows that, on each of the five occasions on which GC Cranes withheld amounts from Mr Auld or Mr McHenry on account of his having, by agreement, finished a shift early (above, section 5.1.3-5.1.7), it did so in breach of the EA (most obviously, cl 22.2). Each such breach was effected in contravention of s 50 of the FW Act. Consistently with reasons already stated, there inheres a further breach of s 323(1) of the FW Act in GC Cranes’s failure to pay what it was obliged to pay.

6.2 The allowance and superannuation contraventions

112    GC Cranes concedes that, insofar as it engaged in the conduct that visited each of the contraventions that are recorded in the table beneath [67] above, it did so in contravention of the EA. Further, it concedes that, by each such instance of conduct, it contravened s 50 of the FW Act.

113    On the strength of those admissions, I reach the same conclusions. For the reasons given at [98] above, the conduct constituting those contraventions also sufficed to contravene s 323(1) of the FW Act.

6.3 The termination contraventions

114    The Union maintains that each of Mr Auld and Mr McHenry was entitled, upon the termination of his employment, to two forms of notice: one under cl 15.1 of the EA, in the form of a period of time before the dismissal would take effect; and another in the form of money payable in lieu of notice pursuant to cl 17.8.

115    GC Cranes defends those claims on three bases: first, that it satisfied its obligation to make redundancy-related termination payments by making contributions to Incolink (against which each of Mr Auld and Mr McHenry successfully made claims after leaving GC Cranes); second, that the EA nominates one entitlement to notice for employees who are dismissed for reasons of redundancy (cl 17.8, which is predominantly satisfied by payment in lieu thereof) and another for employees whose employment terminates for other reasons (cl 15.1), and does not contemplate the simultaneous application of both to individual dismissals; and, third, that any obligation that it did have to afford, or make payment in lieu of, notice of Mr Auld’s and Mr McHenry’s dismissal was at least partially satisfied by the notice that was provided and the sums that were paid after their employment terminated.

116    It is convenient to address each contention in turn.

6.3.1 The significance of the Incolink payments

117    The EA obliges GC Cranes to ensure that all of its employees are “compliant” with various “industry schemes”, namely “Incolink, Cbus and CoINVEST”: EA, cl 18.1. Although there might be scope to debate what that obligation entails, that question doesn’t arise for consideration here. There does not appear to be any doubt—certainly none that bears upon the court’s present task—that GC Cranes made contributions in respect of Mr McHenry and Mr Auld to the “industry schemes” as the EA contemplated that it should.

118    As much is reflected in the evidence. Ms Tempany’s unchallenged evidence was that GC Cranes made weekly payments to Incolink for each week of Mr Auld’s and Mr McHenry’s employment: specifically $120 (at first, then later $140 per week) for “redundancy cover” and $3 per week for “the portable sick leave scheme cover”. Over the course of his employment, GC Cranes made Incolink contributions totalling $17,628.00 in respect of Mr Auld ($17,220.00 “on account of redundancy” and $408 “on account of sick leave”) and $8,892.00 in respect of Mr McHenry ($8,700.00 “on account of redundancy” and $192 “on account of sick leave”).

119    After their employment with GC Cranes came to an end, each of Mr Auld and Mr McHenry made claims against Incolink, including for sums that were claimed on the premise that their employment with GC Cranes had been terminated for reasons of redundancy. On or about 9 October 2023, Mr Auld received an $8,000.00 tax-free payment from “Incolink Fund 5”, apparently by way of an “Employment Termination Payment”. On or about 8 November 2023, he received a further $5,880.00 tax-free payment from “Incolink Fund 4” and a further $3,340.00 tax-free payment from “Incolink Fund 5”, each again apparently on the same “Employment Termination Payment” basis. Mr McHenry received certain sums on equivalent bases: $8,000.00 (tax free) on or about 19 October 2023; and $3,220.00 (tax free) on or about 22 October 2024, each from “Incolink Fund 5”.

120    The nature of those payments and their connection to GC Cranes’s employment of Mr Auld and Mr McHenry could have been clearer. By their affidavit material, neither Mr Auld nor Mr McHenry made reference to having applied for or received them. It appears that GC Cranes was alerted to them as a consequence of the discovery of documents. The applications that Mr Auld and Mr McHenry made to Incolink in order to receive those payments were not in evidence. Nonetheless, it is accepted that the amounts that each of them received (or, in any event, the vast bulk of those amounts) had been received in consequence of an application (or applications) that each had made; and that Mr Auld and Mr McHenry had indicated by those applications that they had been dismissed on grounds of redundancy. Although not stated in terms, it is clear beyond any real doubt that the dismissals so described aligned with Mr Auld’s and Mr McHenry’s departure from GC Cranes in September 2023.

121    What is to be made of those receipts?

122    Clause 21.2 of the EA had the effect that, by reason of having been “enrolled in the ‘Nominated Redundancy Fund’”, each of Mr Auld and Mr McHenry was “entitled to redundancy benefits in accordance with the terms of the relevant Trust Deed”. That trust deed was annexed to one of Mr Vroland’s affidavits. Its content suggests that the payout of benefits under it might not be restricted to situations of “redundancy” as they are defined (howsoever broadly) in cl 2.1 of the EA. Little turns upon that. The question, for present purposes, is whether or not the EA operated such that the making of Incolink contributions was apt to relieve GC Cranes of obligations otherwise imposed.

123    In that respect, GC Cranes fixes upon cl 21.4 of the EA, the terms of which should, for the sake of convenience, be restated:

21.4    The liability of the Employer to pay redundancy payments to an Employee under this clause will be met by the making of the contributions on behalf of each Employee required as a member of the Nominated Redundancy Fund, or by another fund nominated by Incolink under clause 21.5.

124    Clause 21.4 of the EA speaks of GC Cranes’s “liability…to pay redundancy payments to an Employee under this clause”. Those words are curious and warrant a couple of observations. First, “redundancy payments” is undefined. Second, cl 21 does not impose upon GC Cranes a liability to make any payments to employees, redundancy-like or otherwise. GC Cranes submits that the reference in cl 21.4 of the EA to “this clause” was an obvious typographical error; and that it should, instead, be read as though a reference to “redundancy payments…under this agreement”.

125    The Union offered only muted resistance to that contention and I accept it. There is no other way that the reference can sensibly be understood.

126    What then arises for consideration is whether the reference to “redundancy payments” should be understood to encompass any requirement found elsewhere in the EA to afford payment in lieu of notice of dismissal by reason of redundancy. In other words: what does “redundancy payments” mean?

127    The distinction between notice (or payment in lieu thereof) and severance is one of long standing. In its modern, standardised form, it dates back at least to the decision of the Australian Conciliation and Arbitration Commission in the Termination, Change and Redundancy Case (1984) 8 IR 34, 76 (Moore P, Maddern J, Commissioner Brown). Notice is something to which employees (and, for that matter, employers) are entitled whenever an employment contract is brought to an end (payment in lieu, plainly enough, applies exclusively against employers). It is an entitlement that arises in every (non-summary) dismissal situation. Severance—perhaps more well known in contemporary times as “redundancy pay” (see, by way of example, s 119 of the FW Act)—is an entitlement that arises exclusively in the context of dismissal for reasons of redundancy.

128    Clause 17 of the EA maintains that distinction. By cl 17.7, employees whose employment is terminated by reason of redundancy are entitled to a “redundancy payment” that is to be calculated by reference to applicable provisions of either the Building and Construction General On-site Award 2010 (a “modern award” that has force under pt 2-3 of the FW Act) or the “Nominated Redundancy Fund trust deed”. What is meant by the latter could have been made clearer; but it doesn’t much matter. The point remains: cl 17.7 of the EA stands as an independent source of entitlement to “redundancy payment”. The amount payable under that clause (howsoever it might be calculated in any given circumstance) is separate to the amount of notice (or payment in lieu of notice) of dismissal that must be afforded under cl 17.8.

129    With that understood, the import of cl 21.4 is apparent. GC Cranes’s enrolment in the Incolink scheme was apt to cover the liability that it had under cl 17.7 to make a “redundancy payment” to Mr Auld and Mr McHenry; but cl 21.4 had no operation upon its additional and distinct liability to afford notice or payment in lieu of notice of those dismissals.

6.3.2 Were both entitlements engaged?

130    Having so found, attention should next turn to GC Cranes’s alternative submission, which was that it could not simultaneously be liable to afford notice or payment in lieu of notice to each of Mr Auld and Mr McHenry under both of cls 15.1 and 17.8.

131    I have no hesitation in accepting that submission. It is plain beyond doubt that cl 17.8 of the EA is intended to impose upon GC Cranes an obligation to afford, to employees whose employment it terminated for reasons of redundancy, a period of notice or payment in lieu thereof that is (at least in its duration) more generous than the general prescription for which cl 15.1 provides. I reject the suggestion that it is intended to operate as an additional entitlement—that is, that it should operate so as to afford redundant employees an entitlement to notice or payment in lieu of notice in two forms.

132    In saying so, I am conscious that cl 15.1 requires the provision of actual notice, whereas cl 17.8 requires (for present, although not all, purposes) payment in lieu of notice. Those are not identical concepts, it is true; but they are plainly related. Both clauses are concerned with the mechanics of dismissal; more specifically, with the proverbial boxes that an employer must tick before it proceeds to terminate an employee’s employment. The Union’s contention is that the EA affords redundant employees notice entitlements in two forms: first, in the form of a period of time throughout which their employment must endure; and second, in the form of payment in lieu of an additional notice period.

133    To state it in those terms is to recognise the most unusual state of affairs that is inherent in what the Union contends. Were it intended that redundant employees should enjoy two notice-related entitlements, one might expect to see that reflected in much clearer terms. The more obvious way to read cls 15.1 and 17.8 is as alternatives: cl 15.1 is a provision of general application, whereas cl 17.8 is specific to situations involving redundancy. In such situations, the latter applies to the exclusion of the former by application of the maxim, generalibus specialia derogant: specific provisions override general ones.

134    That is, at least in effect, the contention that GC Cranes advances and I accept it. The suggestion that the EA contemplates that employees who are dismissed for reasons of redundancy are entitled to both notice of their dismissal and payment in lieu of further notice of their dismissal cannot be accepted.

135    GC Cranes was obliged to afford each of Mr Auld and Mr McHenry four weeks’ pay in lieu of notice of dismissal. Clause 15.1 of the EA did not apply and there was, thus, no obligation to abide by two notice-related requirements. Insofar as Mr Auld and Mr McHenry received less than four weeks’ pay in lieu of notice (which is the subject of the following section of these reasons), GC Cranes is properly understood to have contravened the requirements of cl 17.8 of the EA.

6.3.3 Application of what was given

136    GC Cranes maintains that it discharged, or partially discharged, its obligation to afford to Mr Auld and Mr McHenry notice or payment in lieu of notice; specifically, by giving each of them five days’ notice of his dismissal and by making a post-dismissal payment.

137    The actual notice that was given is said to have inhered in the correspondence that was sent to each man on 22 September 2023. By those letters, Mr Auld and Mr McHenry were told that, with effect from Wednesday, 27 September 2023, their employment status would change from full time to casual. GC Cranes submits that that correspondence should be understood as having given some notice of dismissal (or, at least, of the end of their time as full-time employees). By its submissions (and, indeed, by its pleading), the Union appeared to entertain that possibility.

138    Had it been necessary to do so, I would have regarded that concession (if that is what the Union offered) as somewhat generous. As it is, the correspondence of 22 September 2023 is irrelevant. Clause 17.8—the only relevant source of GC Cranes’s obligation—required that Mr Auld and Mr McHenry be paid entirely in lieu of notice. Any actual notice that they might have been given is insufficient to discharge that obligation.

139    The amounts that were, in fact, paid after Mr Auld’s and Mr McHenry’s employment terminated are in a different category. The evidence discloses (and the Union properly accepts) that, on or about Friday, 29 September 2023, Mr Auld received the equivalent of two weeks’ pay (calculated at his ordinary time rate, less taxation). At (or about) the same time, Mr McHenry received one week’s pay.

140    At trial, the Union contended, albeit perhaps not as forcefully as it advanced its other submissions, that those amounts could not be credited toward discharge of the obligation that the EA imposed upon GC Cranes to afford payment in lieu of notice. It was (or appeared to be) submitted that the court should be slow to accept that the amounts that were paid to Mr Auld and Mr McHenry on or about 29 September 2023 were referrable to or otherwise had the character of notice or payment in lieu thereof.

141    At least so much was the position of the Union when it opened its case at trial. The point was not obviously persisted with in closing oral submissions but, in any case, it may swiftly be addressed. In evidence were emails that were sent to Mr Auld and Mr McHenry in connection with the amounts that they received on 29 September 2023. It appears that Ms Tempany sent to each man a pay slip recording the payment of those amounts; and that she did so, in each case, under cover of an email that recorded, simply, “Notice period payment”.

142    I do not consider that there is any room to doubt that GC Cranes paid those amounts in satisfaction—or, as it happens, in partial satisfaction—of its obligation to afford payment in lieu of notice. Even absent some express identification of the obligation that those payments were designed to discharge, it is hard to see how they might be understood to have been for any purpose other than payment in lieu of notice; but the issue is put beyond doubt by that express attribution.

143    As it happens, the payment of the amounts that were paid on (or about) 29 September 2023 do not stand in discharge of the obligation that cl 17.8 imposed upon GC Cranes. It was obliged to pay each of Mr Auld and Mr McHenry, upon his dismissal, an amount in lieu of notice equivalent to four weeks’ pay and it did not do so. That failure necessarily inheres as a breach of that clause; and that breach just as clearly sounds as a contravention of s 50 of the FW Act. For reasons already rehearsed, the same conduct sounds in a contravention of s 323(1) of the FW Act.

6.3.4 Was the contravention a serious contravention?

144    Having accepted the Union’s submission that GC Cranes contravened cl 17.8 of the EA, attention should turn to the related contention that its consequential contravention of s 50 of the FW Act was a “serious contravention” for the purposes of s 557A of the FW Act. For the court to accept that it was, it is necessary that the court be satisfied that GC Cranes knowingly contravened s 50 of the FW Act by means of conduct that “…was part of a systematic pattern of conduct relating to one or more other persons”.

145    The Union seeks to cast Mr Micevski as the guiding will that led GC Cranes to do as it did. It was, it says, in his mind that the relevant states of knowledge could be found; knowledge that should accumulate to permit the finding that the court is now invited to make. His state of mind, in turn, is to be divined by inference from other circumstances, to which it is convenient that attention should now turn.

146    Let it be assumed, for a moment, that it was by Mr Micevski’s hand that the decision to dismiss Mr Auld and Mr McHenry was effected. That is not a difficult assumption to make, given the discussion that he had with Mr Murphy on or about 20 September 2023. It is to be recalled that, during that discussion, Mr Micevski confirmed that GC Cranes intended to “transfer” some employees from full time to casual. The correspondence that Mr Auld and Mr McHenry received only two days later was sent under his hand. I accept that Mr Micevski was responsible for setting in train Mr Auld’s and Mr McHenry’s dismissals. At the least, I accept that, by operation of s 793(2) of the FW Act, his state of mind is properly attributable to GC Cranes insofar as concerns its conduct in effecting those dismissals.

147    It is clear that Mr Micevski had at least some knowledge of the terms of the EA. It was partly by his signature that it was made. Although he was not called to give evidence, the Union read part of an affidavit that he had prepared for use in the proceeding, which acknowledged that he knew enough of that instrument to have formed the view that it applied to Mr Auld’s and Mr McHenry’s employment.

148    It is also clear that representations were made to Mr Micevski on 20 September 2023 to the effect that any unilateral change of the employment status of Mr Auld or Mr McHenry from full time to casual would trigger “the redundancy procedure in the [EA]”. In that context, Mr Murphy said to him that GC Cranes would, “…at least have to pay them 4 weeks[’] notice”. The Union seizes upon those representations. They are said to stand as evidence from which the court might properly infer that Mr Micevski—and, through him, GC Cranes—knew that, if it wished to dismiss Mr Auld or Mr McHenry on grounds of redundancy, it would need to pay them four weeks’ pay in lieu of notice.

149    Ordinarily, I would be slow to draw any such inference. It is one thing to say that a person has been told something; another to say that they accept as true what it is that they have been told. The challenge for the Union is to establish, positively by inference, that Mr Micevski came away from his discussion with Mr Murphy knowing that the EA did not permit GC Cranes to dismiss Mr Auld or Mr McHenry for reasons of redundancy unless it paid them four weeks’ pay in lieu of notice. Evidence of what he was told, although relevant, would not be dispositive.

150    Nonetheless, it appears that Mr Micevski had at least some appreciation that Mr Auld and Mr McHenry would be entitled, on dismissal, to amounts in lieu of notice. Ms Tempany’s evidence was that it was Mr Micevski who instructed her to make the payments that Mr Auld and Mr McHenry received on 29 September 2023—amounts that were characterised as being in lieu of “notice”.

151    Should that evidential landscape suffice—perhaps coupled with what was plainly a forensic decision to shield Mr Micevski from subjection to cross-examination—to ground the inference that the Union invites the court to draw (namely, that Mr Micevski knew that GC Cranes was obliged to pay four weeks’ pay in lieu of notice but knowingly chose not to)?

152    Admittedly with some hesitation (born mostly of Mr Micevski’s having not been called to give evidence), I do not consider that GC Cranes’s contravention of s 50 in this instance can be characterised as “knowing” (either generally or by operation of s 557B of the FW Act). There are any number of potential explanations for GC Cranes’s failure to pay in lieu of notice the amounts that cl 17.8 of the EA required. More to the point, there is evidence beyond the discussion that transpired between Mr Murphy and Mr Micevski that might just as easily ground the contrary inference (namely that Mr Micevski did not know or appreciate what the requirements of that clause were). The fact that GC Cranes did pay some amounts by way of notice, for example, suggests that minds were turned to that subject. Likewise, the evidence was that GC Cranes informed the Incolink fund that Mr Auld and Mr McHenry had been made redundant. It is possible that Mr Micevski appreciated the truth of what Mr Murphy told him; but equally it is possible that he went away and formed (and then actioned) a different conclusion. I do not consider that the inference that the Union invites—in respect of a significant penal provision—can safely be drawn on the evidence as it stands, even appreciating the forensic strategy to which I earlier referred (and the reduced reluctance to infer that it naturally inspires).

153    I turn, then, to the second of the two limbs that need to be established in order that the court might characterise a contravention as a serious contravention under s 557A of the FW Act: namely, that the conduct by which it is constituted was part of a systematic pattern of conduct relating to one or more other persons.

154    The significance of the requirement that conduct form part of a systematic pattern is plain enough. A contravention of a civil remedy provision—even a deliberate contravention—that does not form part of a systematic pattern is not a “serious contravention” under s 557A of the FW Act (at least as it stood at the time of the contravention). Obstinance or recalcitrance, in that context, stand as relevant to questions of penalty; but not to the statutory character of the contravention itself.

155    Section 557A(2) affords the court some guidance in assessing whether particular conduct might be thought to form part of a systematic pattern. It might, for example, more likely find that it does in circumstances that involve multiple related contraventions committed over an extended period in respect of multiple people; particularly where some of that conduct has been the subject of complaint.

156    Presently, the Union seizes upon the various discrete contraventions of the EA (including those that GC Cranes has admitted) as evidence that numerous contraventions have occurred over a not insubstantial period of time. Although not irrelevant, I do not find that especially illuminating. At issue presently is GC Cranes’s failure to pay what cl 17.8 of the EA obliged it to pay. That failure is not in any obvious way connected to—which is to say that it cannot sensibly be said to form part of—the conduct that constitutes those other EA breaches. Moreover, of the pre-termination contraventions that are admitted or that I accept occurred over the course of Mr Auld’s and Mr McHenry’s employment, there is no evidence that any was the subject of complaint or was otherwise brought to GC Cranes’s attention. I do not accept that there was any recurring pattern of methodical conduct or any series of coordinated acts over time. Given the pay records that it maintained, I do not consider that GC Cranes might be impugned as any kind of “fly-by-night” operation. I do not, by saying so, excuse its misconduct; but, equally, I do not accept that its history can be impugned as one of studied or systemic indifference.

157    To my eye, the circumstances attending GC Cranes’s contravention of the requirements of cl 17.8 of the EA are sufficiently clear: it made and put into effect a single decision to bring the employment of two employees to an end. It was wrong to effect that decision in the way that it did but I do not accept that its failure formed part of a systematic pattern of conduct.

6.3.5 Conclusions

158    GC Cranes failed to pay each of Mr Auld and Mr McHenry the amounts in lieu of notice that cl 17.8 of the EA obliged it to pay. By those failures, it must be understood to have conducted itself in contravention of ss 50 and 323(1) of the FW Act. The contravention of s 50 was not a “serious contravention” for the purposes of s 557A of the FW Act.

6.4 The personal leave contraventions

159    I turn, then, to the claim that GC Cranes contravened the EA by failing to pay Mr Auld and Mr McHenry their accrued personal and/or carer’s leave entitlements upon dismissal. At issue is whether the provisions of the EA relating to the “Incolink PSL [portable sick leave] Scheme” operate so as to relieve GC Cranes of what would otherwise be the award-incorporated obligation upon which the Union’s claims rest. That is the sole question upon which those claims turn. Perhaps a more precise articulation of it is this: are the provisions of the EA that mandate and regulate GC Cranes’s participation in the Incolink PSL Scheme inconsistent with award-incorporated provisions that require payment upon termination of employment of certain accrued personal leave entitlements?

160    There can be no doubt that cl 12 of the Award, as it stood on 31 December 2009, made provision for the entitlements that are the subject of this part of the Union’s claim. Equally, there can be no doubt that GC Cranes was obliged to make contributions on behalf of Mr Auld and Mr McHenry into the Incolink PSL Scheme and (by cl 16.2) to report certain information to the scheme in respect of dismissed employees. It is apparent that each employee was enrolled in the scheme and I do not understand it to be in doubt that each enjoyed certain personal leave entitlements in consequence of that enrolment. There was a somewhat muted suggestion that GC Cranes had failed to make all of the payments to the scheme that the EA obliged it to make. Even assuming that to be so (which I do only for the sake of convenience, acknowledging that it was a suggestion that GC Cranes contested), nothing turns on that. There was no cogent suggestion—much less any obvious evidential basis upon which cogently to suggest—that Incolink’s obligation to meet the entitlements afforded to employees by reason of their enrolment in the scheme is or was conditional upon GC Cranes’s strict compliance with the EA.

161    It is to be recalled that enrolment in the Incolink PSL Scheme inheres to the benefit of all GC Cranes employees, not merely those whose employment is terminated for reasons of redundancy. Although it could have been clearer, I’ve not understood there to be any real doubt about how the scheme operates (at least broadly); namely, as a means by which employees who, whilst remaining within the construction industry, might move from employer to employer without a reset of their personal leave entitlements.

162    Why then, might the EA be understood to contemplate that employees whose employment terminates for reasons of redundancy should have access both to that universal system of portable leave and to payment of the very entitlements (or some of them) that that system is designed, or apparently or partly designed, to cover?

163    No good answer to that question has been offered. Instead (and simply), the Union maintains that cl 21.9 of the EA “…says nothing about the discharge of any other obligation to pay sick leave on termination”. So much may, of course, be accepted; but what possible purpose might a portable leave scheme serve if not to maintain, at least to some degree, a person’s leave entitlements post-termination? The question presently is whether the provisions of the EA that confer portable leave entitlements (via Incolink) are inconsistent with provisions of the Award that contemplate the payment (or part payment) of equivalent entitlements on dismissal.

164    That question should be answered in the affirmative. GC Cranes cannot be understood to have contravened the EA insofar as it failed to pay Mr Auld and Mr McHenry the sick leave entitlements that the Union identified. It follows that there was no consequential contravention of ss 50 or 323(1) of the FW Act.

6.5 The waiting time payment contraventions

165    As has been noted, the waiting time payment claims are, by some margin, the most significant of the Union’s claims. It repays to repeat cl 16.1 in its entirety:

Upon termination of employment, the Employer shall pay each terminated Employee all accrued entitlements and other wages owing and provide a separation certificate within 2 business days of termination, unless otherwise agreed in writing between the Employer and Employee, or the Employee shall be entitled to claim payment for all time beyond the two working days, up to a maximum of 8 hours per day, including Saturday and Sunday, until the entitlements are paid.

6.5.1 Construction of cl 16.1

166    The first basis upon which GC Cranes sought to resist liability under cl 16.1 was constructional. The Union casts the first part of the clause (up to the word “or”) as constituting one or more factual preconditions to the waiting time payment that is provided for in the second part of the clause. That is plainly so.

167    GC Cranes maintains that that factual precondition, or one of them, is not fulfilled in the instant case. It maintains that, properly construed, the reference to “accrued entitlements and other wages owing”, should be understood to extend only to those amounts payable in consequence of dismissal and not to what GC Cranes describes as historical oversights of the kind with which the present matter engages. Were the court to prefer that interpretation, GC Cranes submits, it could be satisfied that the obligation that cl 16.1 imposes had, in the case of Mr Auld and Mr McHenry, been complied with; in other words, that GC Cranes did pay to each of them, within two business days of dismissal, all of their “accrued entitlements and other wages owing”.

168    The controversy is to be resolved by application of standard construction principles, the nature and effect of which are notorious and were not in dispute. Ultimately, it boils down to what is meant by the reference in cl 16.1 of the EA to “other wages owing”.

169    That phrase only has one meaning. There is nothing in the text of the clause (read in its proper context) that should incline the court to conclude that “other wages owing” is a reference to anything other than amounts arising as incidents of employment that departing employees are owed but have yet to receive. There is certainly no aspect of text or context that suggests that the words are temporally confined in the manner for which GC Cranes contends. I consider the import of the clause to be clear enough: if, two business days after termination, there are amounts that a departed employee is owed, certain (monetary) consequences will flow from a failure to pay them.

170    In fact, there remained, until well beyond two business days after their dismissals took effect (indeed, there still remain) amounts that GC Cranes owed (and still owes) to Mr Auld and Mr McHenry in relation to their employment. That reality suffices to engage the terms of cl 16.1.

6.5.2 Whether cl 16.1 is about a permitted matter

171    What next falls for consideration, then, are the competing contentions as to whether or not that resultant prescription—that is to say, the entitlement to claim amounts equivalent to eight hours’ pay per day for every day (including weekends) since 29 September 2023—is recoverable; or, more accurately, whether GC Cranes’s failure to make good on that prescription amounts to a breach of the EA and/or a contravention of ss 50 and 323(1) of the FW Act.

172    Before addressing that question, something might be said of the manner in which the Union’s contention is put. Clause 16.1 contemplates that, in the event that there remain “accrued entitlements [or] other wages owing” to a dismissed employee beyond two business days after the dismissal, he or she “shall be entitled to claim” the sum then described. The court was not taken to any evidence of any such claim having been made. Instead, senior counsel for the Union was content to assert that it was made—indeed, made only—by means of the commencement of the proceeding (and, one presumes, simultaneously on behalf of each of Mr Auld and Mr McHenry). GC Cranes was equally content to resist the claim on the bases that it advanced, which did not include any suggestion that Mr Auld and Mr McHenry could not be understood to have made a “claim” of the kind to which cl 16.1 of the EA refers.

173    I will proceed on that apparently uncontroversial basis. The result is, perhaps, somewhat curious, in the sense that the “claims” by reason of which arise the entitlements that the Union hopes here to recover are said to inhere in a complaint that those very same entitlements haven’t been paid. By the same mechanism, the Union is to be understood both to trigger entitlements and to move for relief in respect of their non-payment. That there is no need further to explore that somewhat mind-bending state of assertion is a reality for which I am oddly grateful.

174    Instead, attention should shift to the question that arises on the submissions advanced by GC Cranes: namely, whether or not the “waiting time payment” that cl 16.1 of the EA contemplates is an entitlement that the Union may recover under the FW Act.

175    In addressing that question, there is a characteristic of the asserted entitlement that warrants recording. By its terms, cl 16.1 of the EA defines entitlement to waiting time pay by reference to a period of time. Necessarily, that period commences two business days after an employee’s employment terminates. In the case of Mr Auld and Mr McHenry, it commenced on 29 September 2023. Neither man was employed by GC Cranes at any point throughout the entirety of the period over which the asserted entitlement accumulated.

176    It is at least in part by reason of that reality that GC Cranes maintains that cl 16.1 is not a clause pertaining to a “permitted matter” (within the meaning given to that phrase by s 172 of the FW Act). It does not, so the contention continues, pertain to the relationship between GC Cranes (as an employer) and, relevantly, Mr Auld or Mr McHenry (in either case as an employee).

177    It is well established that, in order to qualify as one that pertains to the employment relationship, a clause must operate so as to affect an employer as an employer and an employee as an employee: Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 (“Re Alcan”), 106 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) . It is not sufficient for a clause merely to have some tangential connection to employment.

178    As much is clear from authority. In Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, for example, the High Court had occasion to consider whether industrial action that certain unions had organised against an employer qualified as “protected action” under s 170ML of the Workplace Relations Act 1996 (Cth). The industrial action had been waged in support of claims that the unions had advanced in bargaining for a collective agreement. It could only qualify as “protected action” insofar as the agreement that was sought qualified as what was then known as a “certified agreement”, which turned upon whether the matters that were sought to be agreed were matters pertaining to the employment relationship between an employer and its employees. The claims for which the unions had bargained (and in support of which they had organised industrial action) included a claim for a “Bargaining Agent’s Fee” clause, pursuant to which it was proposed that employees who were not union members would pay to the relevant union—via deductions from their wages—a fee to compensate it for its bargaining efforts.

179    The High Court accepted the employer’s contention that the bargaining agent’s fee clause was not one that relevantly pertained to the employment relationship. In doing so, Gummow, Hayne and Heydon JJ adopted (at 371-2 [165]) what the primary judge in that matter had said about the nature of the clause, namely that the relationship that it sought to create:

…is, essentially, one of agency; Electrolux is to contract with its employees on behalf of the relevant union, as its agent. The agency so created is for the benefit of the union, rather than for the benefit of the employee upon whom the contractual liability is to be involuntarily imposed.

180    In Re Alcan, the issue of “pertaining” arose in a different legislative context. Under s 4(1) of the Industrial Relations Act 1988 (Cth) (the “IR Act”), jurisdiction was not conferred on the relevant industrial tribunal unless the presenting matter was “an industrial dispute…that is about matters pertaining to the relationship between employers and employees”.

181    The question for the court was whether that jurisdictional tether attached to certain demands made by the union that employers in the aluminium industry remit to it the union dues of their employees. The union had sought that, upon the request or authorisation of their employees, the employers deduct from the relevant wages and provide to the union the amounts payable by each employee as a member of the union. The High Court found (at 107) that the tribunal’s jurisdiction was not enlivened, including because the demands were concerned with “a relationship involving employees as union members and not at all as employees”. That authority stands undisturbed (although, in the present legislative scheme, authorised deductions are provisioned for separately as a matter about which an enterprise agreement may be made: FW Act, s 172(1)(c)).

182    R v Hamilton Knight; Ex parte Commonwealth Steamship Owners' Association (1952) 86 CLR 283 (“Hamilton Knight”) concerned a statutory ancestor of s 4(1) of the IR Act. There, the High Court considered whether certain disputed claims brought by maritime employee associations were barred by a similar jurisdictional hurdle to that considered in Re Alcan.

183    The first such claim applied in the event of an employee suffering “a personal injury by illness or accident arising out of or in the course of the employment”. It was proposed that the employer would, for the first three months of that incapacity, pay to the employee their pre-injury salary; or, if they died from the injury, pay to their estate a lump sum equal to four years’ pay. The clause stipulated that the entitlement to compensation—or perhaps, as Kitto J clarified at 328, “the right to immediate receipt of payments of compensation”—would only fall due upon the cessation of employment.

184    The High Court (by effective majority) found that the clause pertained to the employment relationship. Factored into that holding by each of Dixon CJ (at 296), Webb J (at 308) and Kitto J (at 329) was the reality that, to be compensable, an injury had to be occasioned as a consequence of employment.

185    The second relevant claim—albeit expressed as some form of continuation of the employment relationship—effectively established a pension scheme for retired employees. For reasons unrelated to the present inquiry, the High Court found that it extended beyond what the tribunal had power to award. Nevertheless, the analysis of Webb J, in preferring the view that the proposed clause pertained to the employment relationship (at 308), is instructive:

I think that such a provision, being an incentive to and a reward for long service with an employer, can properly be said to pertain to the relations of employers and employees in almost any industry. Although the pension necessarily is paid after the relationship ceases it is still remuneration for service during the relationship. It does not cease to be such because the payment is deferred until after the service is finally performed, and is then spread over the life of the employee or the lives of the employee and his widow.

186    Similar conclusions have been reached with respect to employer contributions to superannuation funds: Re Manufacturing Grocers’ Employees Federation of Australia; Ex parte Australian Chamber of Manufactures (1986) 160 CLR 341 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).

187    In Australian Maritime Officers Union v Sydney Ferries Corporation (2009) 190 IR 193 (Black CJ, Jessup and Buchanan JJ; “Sydney Ferries”), an impugned clause provided for the employer to insure certain of its employees against long term illness and injury at a rate of 75% of their salary. The union acknowledged that the clause conferred benefits upon employees whether the disability was incurred in service or otherwise, and that those benefits could persist after employment had ended. Its unenforceability was put in issue as a shield against proceedings for breach of the workplace instrument of which it formed part. The clause (or part of it) would be void “to the extent that it [dealt] with a matter that [did] not pertain to the employment relationship”: Workplace Relations Act 1996 (Cth), s 358; Workplace Relations Regulations 2006 (Cth), reg 8.7.

188    In seeking to ascribe a particular character to the clause, the full court eschewed (at 200 [20]) “hard and fast rules” in favour of assessing the clause’s character in all of the relevant circumstances. That notwithstanding, the court recognised that payments “made to, or for the benefit of, an employee by an employer” would normally be presumed to pertain to the employment relationship, unless the payment “falls into a category identified as outside [of it]”. The features of the clause that the union had acknowledged did not, in the court’s view, necessarily indicate that the clause fell into such a category (at 200 [21]).

189    Ultimately, their Honours held (at 201 [24]) that the matters dealt with by the clause did pertain to the employment relationship. The court considered the clause to be free of certain “defects” which might have militated against that conclusion; including, most relevantly, the assumption of any obligation by the employer to continue to pay insurance premiums after employment had ended. The clause conferred benefits during employment as well as after it; and the circumstance against which employees were to be insured was “the loss of income arising from the employment relationship” (at 201 [24]).

190    Those authorities surveyed, it is difficult to see how amounts that cl 16.1 of the EA contemplates as payable might be described as amounts pertaining relevantly to an employment relationship. It might be accepted that they bear at least some connection with employment, in that they are expressed to be payable after employment terminates and only in the event that other employment-related sums are unpaid. In that sense, at least, one might accept that cl 16.1 relates to employment relationships in a similar way that a bargaining agent’s fee clause or a clause that compels the withholding of union membership subscriptions does: peripherally, or at the level of context or background.

191    The kind of post-employment benefit that cl 16.1 purports to confer is in a very different category from those considered in Hamilton Knight and Sydney Ferries. The entitlement does not—and cannot—arise during the currency of an employment relationship. Calculation of the amount that it contemplates requires reference to a period of time that is wholly external to any such relationship. It is triggered not by any event occurring or service rendered during employment but by an omission that occurs (or continues) after its termination. The entirety of the work for which the clause was designed is, by its terms, to be done after employment has been brought to an end.

192    That being so, it is impossible to conceive of cl 16.1—at least insofar as it confers an entitlement to waiting time pay—as a clause about a matter that pertains to any employment relationship. A clause that confers an entitlement conditionally upon the absence of an employment relationship, the quantum of which is to be calculated by reference to a period of time during which no relevant employment relationship may exist, is not a clause that pertains to the relationship between an employer (as an employer) and an employee (as an employee). It is more accurately described as a clause pertaining to the relationship between a former employer (as a debtor) and a former employee (as a creditor).

193    The significance of that conclusion is clear. To the extent that cl 16.1 of the EA is not a term about a permitted matter, s 253(1) of the FW Act operates to denude it of any effect (or, in any event, of the effect that the Union asserts that it has). It is, then, not a clause that confers the entitlement that it purports to confer. GC Cranes’s failure to afford waiting time pay in respect of Mr Auld and Mr McHenry cannot sound as conduct in which it engaged in contravention of the EA. It must follow that no contravention of ss 50 or 323(1) of the FW Act inheres in that failure.

194    Having so concluded, it is strictly unnecessary that I should venture to address the other independent premises upon which GC Cranes submitted that cl 16.1 of the EA was of no effect. Nonetheless, I am inclined at least to address its contention that cl 16.1 is of no effect by reason of its repugnancy to the statutory scheme under which the EA was made and is able to be enforced.

6.5.3 Whether cl 16.1 is repugnant to the FW Act

195    That (repugnancy) contention rested heavily upon the observations of the full court in Toyota Motor Corporation Australia Ltd v Marmara (2014) 222 FCR 152 (Jessup, Tracey and Perram JJ). There, an employer sought to bargain in relation to the variation of an enterprise agreement that contained a “no extra claims” clause. It was said that the effect of such a clause was to prohibit the employer from agitating claims throughout the currency of the agreement, including for the purposes of its variation. Its attempt in that regard was said to—and, at first instance, the court agreed that it did—amount to conduct in which the employer engaged in contravention of the agreement and, thereby, in contravention of s 50 of the FW Act.

196    That conclusion was reversed on appeal. After referring to authority, the court was moved to state (at 182 [96]) a general proposition upon which its determination of the point might rest, namely that, “…the power to make a federal ordinance cannot be exercised in a manner incompatible with the law made by the Parliament itself (and, one might add, especially not the law under which such an ordinance would have been made).” Their Honours continued (at 182 [97]):

An enterprise agreement made under Pt 2-4 of the FW Act is not, of course, a regulation. But, as stated above, it is something more than a mere agreement in the way of a contract. It is a specific instrument made only under the detailed regime for which Pt 2-4 provides and enforceable only as provided by the FW Act. To this extent, we consider that the general principle applicable to the invalidity of regulations on account of repugnancy with their authorising statute is relevant to the issue presently for resolution. At base, the question which arises under that issue is essentially one of the rule of law. Parliament having said that an enterprise agreement may be varied, and that the employer may put a request to its employees in that regard, a term of the agreement which states, or has the effect, that the employer may not so proceed must necessarily be inconsistent with or repugnant to the FW Act to that extent. …

197    Insofar as concerns the waiting time pay for which cl 16.1 purports to provide, GC Cranes’s contention was crisply stated in its written submissions: it said that the clause (at least upon the Union’s construction, which I consider is its proper construction), “…in substance and effect purports to impose a monetary penalty when the imposition of monetary penalties is entirely governed by the provisions of the FW Act, and in particular, s. 546 [of the FW Act]”.

198    The waiting time payment for which cl 16.1 of the EA provides is properly characterised as a sum payable in consequence of the late payment or non-payment of other entitlements earned during the course of employment. Whether it might fairly be described as a “penalty” doesn’t much matter (although it is unclear what a better adjective might be). What matters is that it purports to impose upon GC Cranes—perhaps not in every case but certainly in this one—a liability to pay a monetary sum on account of its having engaged in conduct of a kind or kinds that ss 50 and 323(1) of the FW Act prohibit. Importantly, the entitlement to that sum purports to be independent of and additional to the existing liability that triggered it. In circumstances where such other liabilities remain to be met (including, where necessary, by an accompanying award of interest), cl 16.1 can only be understood to impose (or to purport to impose) an obligation that is not compensatory.

199    In that sense, the parallels between cl 16.1 of the EA and s 546(1) of the FW Act are apparent. Both apply (or potentially apply) in respect of conduct engaged in in contravention of ss 50 and 323(1) of the FW Act, and both envisage the imposition of a non-compensatory pecuniary consequence in respect of that conduct. By cl 16.1 of the EA, that consequence is determined by reference to a period of time; by s 546(1) of the FW Act, it is determined by reference to what a court considers appropriate (assessed within other statutory constraints).

200    Repugnancy, in the manner by which GC Cranes asserts it, is to be found insofar as the provisions make different provision for the same subject matter (namely, the consequences of breach). It is necessary that one must yield to the other; and it is plain which of the two sources of consequence is superior in the regulatory hierarchy.

201    I accept GC Cranes’s contention that the waiting time payment for which cl 16.1 of the EA provides is, at least in the presenting circumstances, repugnant to the statutory scheme pursuant to which the EA was made and enforceable. Both parties proceeded (or, certainly, appeared to proceed) on the basis that the consequence of that finding, were I to prefer it, would be that the waiting time pay for which cl 16.1 provides (rather than the EA itself or its approval, as the emanation of the exercise of statutory or executive power) would be void or of no effect, with the consequence that it could not properly be understood to stand as an independent source of entitlement, the non-payment of which involved conduct in which GC Cranes engaged in contravention of ss 50 and 323(1) of the FW Act. I am content to proceed on that premise: even assuming that I am wrong about the extent to which cl 16.1 of the EA is a term about a “permitted matter”, I would nonetheless accept that, to that same extent, it is repugnant to the statutory scheme pursuant to which the EA was made and is enforceable. Either way—and for the equivalent and consequential want of legal effect—it is not competent to afford the entitlement that is said to ground the relief for which the Union moves. GC Cranes’s refusal or failure to meet the demands made against it pursuant to cl 16.1 is not conduct in which it engaged in breach of the EA and, therefore, there are no corresponding contraventions of s 50 or s 323(1) of the FW Act.

202    I do not consider it necessary (and nor do I intend) to address the third of GC Cranes’s alternative bases upon which cl 16.1 of the EA may be said to be deprived of legal effect (namely because, as an incident of the exercise of executive or statutory power, the Fair Work Commission-approved EA was not competent to visit a consequence that ch III of the Constitution reserves solely for the exercise of judicial power). That area of the law has attracted a significant degree of High Court attention of late and is not without its complications; to the point that it is, respectfully, almost impossible for a single judge sitting at first instance to divine on which side of the proverbial line the High Court might consider that the facts of a matter such as this one fall. Having determined, on two alternative fronts, that cl 16.1 of the EA lacks proper legal effect, it is unnecessary that I should speculate in that regard.

203    For completeness, GC Cranes advances other constructional arguments by which it seeks to give cl 16.1 a confined reading. They concern the quantification of the amounts that an employee is entitled to claim under cl 16.1 and the period in respect of which they might be claimed. For the reasons set out above, I consider that cl 16.1 does not have any valid operation insofar as concerns the payment prescribed for waiting time. The confined reading for which GC Cranes contends would not change that. That being so, it is unnecessary that I should address what was said on that front.

6.6 The consultation contraventions

204    As has been noted, by proceeding to dismiss Mr Auld and Mr McHenry for reasons of redundancy before or without first calling for expressions of interest in voluntary redundancy, GC Cranes concedes that it contravened the EA (specifically, cl 17.3). I accept (indeed, it is plain) that it did so; and that it did so in contravention of s 50 of the FW Act.

205    The remaining “consultation” contraventions concern cl 11 of the EA and whether, by deciding to dismiss Mr Auld and Mr McHenry, GC Cranes should be understood to have “…made a decision to introduce a major workplace change that [was] likely to have a Significant Effect on a number of Employees”. It is not in contest that GC Cranes failed to embark upon the consultation and information sharing processes to which cl 11 refers. At issue is whether it was obliged to.

206    Clause 11—and its reference to “major workplace change” and “significant effects”—bears obvious resemblance to the species of consultation obligation that was first standardised as part of the landmark “TCR cases”: Termination, Change and Redundancy Case (1984) 8 IR 34 and 9 IR 115 (Moore P, Maddern J, Commissioner Brown). By those decisions, what was then the Conciliation and Arbitration Commission conceived of a model clause, since incorporated into countless instruments (including the Award) by which employers might be obliged to enter upon consultation with employees and their representatives about certain matters. In its final form, the TCR consultation clause contemplated that the obligation to consult might arise in circumstances where an employer had made a definite decision to “…introduce major changes in production, program, organization, structure or technology that are likely to have significant effects on employees”. “Significant effects” were defined more or less as cl 11 of the EA defines them.

207    The Union contends that, by deciding to dismiss Mr Auld and Mr McHenry, GC Cranes must be understood to have decided to introduce a major workplace change that was likely to result in “Significant Effect[s]” for a number of employees. The significant effects that attached to that decision and the employees upon whom they acted are readily apparent: they inhered at least in the termination of Mr Auld’s and Mr McHenry’s employment and its impact upon them. The more significant question is whether or not the decision to dismiss might properly be characterised as a “decision to introduce a major workplace change”.

208    The Union contends that it can and should. Inherent in that contention is the suggestion that dismissal might simultaneously serve as cause and effect: in other words, that the removal of employees from a workforce might simultaneously stand as the introduction of a major workplace change and the visitation of significant effects. To that end, it notes that the EA does not define “major workplace change”. Nor does cl 11 (unlike the TCR clause) limit the nature of that change. A decision will, the Union says, qualify as one directed to the introduction of a major workplace change if, by its nature, it concerns the workplace and results in a change properly described as “major”. It casts GC Cranes’s decision to dismiss two out of the six or seven employees of its mobile crane hire business as one that was apt to work such a change.

209    GC Cranes resists that proposition on the bases (amongst others) that the business, as a whole, was much larger than the six- or seven-man operation that the Union describes; and that a head-count reduction of two cannot properly be regarded as a major change.

210    It repays, at this juncture, to recall the circumstances that led to Mr Auld’s and Mr McHenry’s dismissals. It is common ground that GC Cranes (or at least, its mobile cranes division) had, in the weeks prior to 27 September 2023, endured a downturn in business. It was in the context of that downturn that it decided to dismiss Mr Auld and Mr McHenry.

211    Clause 11.1 is engaged where GC Cranes makes “a decision to introduce a major workplace change that is likely to have a significant effect on a number of employees”. On its face, the clause assumes a conceptual distinction between the change that is to be introduced and the effects that are likely to attend it. Termination of employment is, in that taxonomy, an effect: a consequence apt to be visited upon employees by reason of some antecedent change.

212    I do not accept that a decision to dismiss employees is, by itself, properly described as a decision “to introduce a major workplace change”. To treat Mr Auld’s and Mr McHenry’s dismissals as the “introduction of a major workplace change” collapses the distinction that the clause draws between cause and effect: it treats an effect (termination) as though it were the change that is said to produce it.

213    A decision to dismiss employees may be—and here, I think, very likely was—a consequence of some other decision; and, quite possibly, some other decision that could properly have been described as a “decision to introduce a major workplace change”. A decision to effect a reduction of hands by reason of operational downturn would, I think (certainly in many cases), classically qualify as a decision to introduce a major workplace change that threatened significant effects (not least in the form of subsequent dismissal decisions of kinds similar to that which affected Mr Auld and Mr McHenry). That, though, is not how the Union’s case here was pleaded.

214    I do not accept that GC Cranes’s decision to dismiss each of Mr Auld and Mr McHenry, of itself, amounted to a decision to introduce a major workplace change for the purposes of cl 11.1 of the EA. Clause 11 did not impose upon GC Cranes any obligation to consult or share information about that decision. It follows that its failures in those regards cannot be impugned as conduct in which it engaged in contravention of the EA; and nor can they be impugned as conduct in which it engaged in contravention of s 50 of the FW Act.

6.7 Conclusions

215    In summary then, I am satisfied that:

(1)    GC Cranes committed each of what section 6.1 of these reasons describes as the “ordinary time contraventions”;

(2)    GC Cranes committed each of what section 6.2 of these reasons describes as the “allowance and superannuation contraventions”;

(3)    GC Cranes failed to pay each of Mr Auld and Mr McHenry the amounts in lieu of notice that cl 17.8 of the EA obliged it to pay and, thereby, contravened ss 50 and 323(1) of the FW Act; but (in the case of each former employee) the contravention of s 50 was not a “serious contravention” for the purposes of s 557A of the FW Act;

(4)    GC Cranes did not contravene the EA or the FW Act insofar as it did not afford Mr Auld and Mr McHenry notice of termination under cl 15.1 of the EA;

(5)    GC Cranes did not contravene the EA insofar as it failed to pay Mr Auld and Mr McHenry the accrued sick leave entitlements that the Union identified;

(6)    GC Cranes did not contravene cl 16.1 of the EA (or any legally operative part thereof) by refusing or failing to pay waiting time payments;

(7)    GC Cranes contravened cl 17.3 of the EA (and, by extension, s 50 of the FW Act) by proceeding to dismiss Mr Auld and Mr McHenry for reasons of redundancy before or without first calling for expressions of interest in voluntary redundancy from other employees; and

(8)    GC Cranes did not act in contravention of cl 11 of the EA insofar as it failed, prior to dismissing Mr Auld and Mr McHenry, to enter upon the consultation and information sharing processes for which that clause provided.

7. Relief

216    By its amended originating application, the Union seeks declaratory relief, as well as orders for compensation, interest and the imposition of pecuniary penalties.

217    Consistently with case management orders made in the matter’s early stages, the issue of penalty will be determined as the subject of further hearing (and, if necessary, further evidence). The question (or appropriateness) of declaratory relief was not addressed at the initial trial; at least not beyond a summary indication that “declarations of contravention” were sought. To date, the only relief in respect of which the court has received substantive submissions concerns the compensatory relief (and interest) that should be awarded in respect of the statutory contraventions that have been alleged.

218    As with relief in the nature of pecuniary penalties, I will reserve for later consideration whether, or to what extent, it might be appropriate to grant relief in the form of declarations of right in respect of the statutory contraventions upon which I am satisfied that the Union has made good. That acknowledged, it is appropriate that attention should turn to what, if any, compensatory relief should be awarded in respect of those contraventions (or the ones that were said to warrant relief of that nature).

7.1 The ordinary time contraventions

219    The majority of the ordinary time contraventions concern the five occasions on which GC Cranes permitted either Mr Auld or Mr McHenry to leave work early and, by agreement, reduced his weekly pay. The reduction, on each occasion, was no greater than the salary associated with working those hours at the applicable hourly rate. The total reduction in respect of Mr Auld was $915.98; and, in respect of Mr McHenry, was $355.32.

220    GC Cranes contends that the court ought not to make any order for statutory compensation in respect of those contraventions. Mr Auld and Mr McHenry, it maintains, received the benefit of leaving work early on the days in question. Therefore, neither suffered any relevant loss.

221    In making an order for compensation under s 545, the court’s task is restorative. Its intended result is to place the affected parties in as near to the position that they would otherwise have been in had the wrongdoer not contravened the civil remedy provision in issue. To the extent that it is concerned with what is appropriate or just, that is not a wandering inquiry directed to achieving some amorphous conception of what is “fair”; but one that is directed to what is reasonable, in the circumstances, to compensate for the loss caused by the contravention: Transport Workers’ Union of Australia v Qantas Airways Ltd (2024) 334 IR 187, 215-6 [77]-[82] (Lee J) and the authorities to which his Honour referred.

222    It might be accepted that, had the early departure arrangements been effected in a way or ways contemplated by the EA—for example, through the depletion of accrued annual leave entitlements—Mr Auld’s and Mr McHenry’s financial positions might not be materially different from what they are now. GC Cranes’s having entered into the arrangements that it did with Mr Auld and Mr McHenry is not, however, the contravening conduct with which the court is concerned. The contraventions inhere in Mr Auld’s being paid less than what the EA prescribed on three occasions; and Mr McHenry’s being paid less than what the EA prescribed on two occasions. GC Cranes has never compensated either employee for the loss of those earnings. That they did not perform work over the relevant periods may be accepted; but that is no answer to the Union’s contention. It is not suggested that each was compensated in some way by, for example, his later receipt of payment for annual leave accruals that were higher than what they might have been had the early departures been handled in a way that wasn’t contrary to the requirements of the EA.

223    There is one other ordinary time contravention in respect of which the Union moves for statutory compensation. It concerns the admitted shortfall of $252.80 in the remuneration that was paid to Mr McHenry for his first week of work. As has been noted, GC Cranes led unchallenged evidence from Ms Tempany that its failure in that respect was intentional. Instead of paying Mr McHenry for four of the hours of work he had performed, it had “banked” his pay for those hours so that Mr McHenry could enjoy his first rostered day off at full pay. Although the purpose underpinning that is difficult to identify, the contention nonetheless is that there is no evidence that Mr McHenry suffered any loss by virtue of having received payment for the hours that he worked a week later than he ought to have received it.

224    The Union contends that there is no coincidence of purpose linking the later (over)payment with the payment that GC Cranes should have made earlier. Citing Wardman v Macquarie Bank Ltd (2023) 322 IR 278, 316-8 [126]-[133] (Wheelahan J, with whom Bromberg J and I agreed), it maintains that the later amount cannot be understood to have been paid and received in satisfaction of the earlier entitlement.

225    That somewhat opportunistic submission should be rejected. The EA establishes a scheme for the “banking” of ordinary hours in order that employees might have one day per fortnight as time off without loss of pay: EA, cls 31, 33. Irrespective of the label that was applied to it, I am satisfied that the objective purpose of the later (over)payment—being directed, as it was, toward the full discharge of Mr McHenry’s weekly pay—was sufficiently congruent with that which GC Cranes failed the week earlier to make. The court’s acceptance of the contrary proposition would necessarily be to endorse a double-pay windfall gain.

226    It is not appropriate for the court to award compensation for the contravention of a civil remedy provision in circumstances where the loss that the contravening conduct visited has been remediated. No compensation will be awarded in respect of the contraventions of ss 50 and 323(1) of the FW Act arising from the underpayment of $252.80 in Mr McHenry’s first week of employment. Likewise, there should (and will) be no compensation awarded in respect of the $60.00 shortfall that attended Mr McHenry’s remuneration in September 2022 (above, section 5.1.1), nor any of the other admitted contraventions to the extent that they have already been the subject of redress (above, section 5.2).

7.2 The allowance and superannuation contraventions

227    It will be recalled that, of the $11.58 shortfall from the amount that Mr McHenry was required to be paid for operating, during overtime on Tuesday, 27 June 2023, a crane with a heavier-than-usual lifting capacity, $1.58 remains outstanding. There should be compensation awarded in that amount.

7.3 The termination contraventions

228    There is no dispute about the amount that ought to have been but was not paid to each of Mr Auld and Mr McHenry in lieu of notice of his dismissal. In the case of each, the amount in question comes to $9,378.72. What is controversial is the account, if any, that should be taken of the amounts that GC Cranes paid in late September 2023: namely, $2,605.20 to Mr McHenry and $5,210.40 to Mr Auld. I have found that those amounts were paid in partial satisfaction of their entitlement to notice (or payment in lieu thereof). Those amounts reduced Mr Auld’s and Mr McHenry’s respective losses and should be applied to reduce the amount of compensation that is appropriate to be awarded. That leaves an outstanding amount of $6,773.52 in respect of Mr McHenry and an amount of $4,168.32 in respect of Mr Auld. It is appropriate that compensation in those amounts be awarded.

7.4 Conclusions

229    GC Cranes should pay compensation to Mr Auld and Mr McHenry as follows, namely:

8. Interest

230    Interest should and will be ordered in respect of the compensatory amounts that, for the reasons just completed, it is appropriate should feature in the court’s orders: FW Act, s 547(2); Federal Court of Australia Act 1976 (Cth), s 51A.

231    There is no obvious dispute that interest should be payable:

(1)    in respect of the compensation relating to the ordinary hours contraventions, from 11 April 2023;

(2)    in respect of the compensation relating to the allowance and superannuation contraventions, from 6 July 2023; and

(3)    in respect of the compensation relating to the termination contraventions, from 27 September 2023.

232    Interest on the compensation amounts should be payable from the corresponding dates identified above at the rates referred to in paragraph 2.2 of the court’s Interest on judgments practice note (gpn-int).

9. Next steps

233    The matter should and will be listed for a case management hearing to discuss its progression to further hearing, at which the court will determine the remaining issues concerning declaratory and penalty relief.

Associate:

Dated:    24 June 2026