Alcantara v Buildpower Pty Ltd (No.2)

Link copied
Case Copied 30 min read

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALCANTARA & ANOR v BUILDPOWER PTY LTD (No.2) [2010] FMCA 763
INDUSTRIAL LAW – Penalty hearing – contravention of regulation 3.42(4) of the Fair Work Regulations 2009 (Cth) – failure to produce requested employee record to applicants as soon as practicable after request – inadmissible evidence – factors for consideration in assessment of penalty.
Crimes Act 1914 (Cth), s.4AA
Evidence Act 1995 (Cth), ss.56(2), 59(1)
Fair Work Act 2009 (Cth), ss.3(b), (c) and (e), 12, 546(2)(b)
Fair Work Regulations 2009 (Cth), regs.3.42(4), 3.45, 3.46, 4.01A -Item 12

Abrahams v Qantas Airways Ltd (2007) 210 FLR 314; [2007] FMCA 639

ACCC v IPM Operation and  Maintenance Loy Yang Pty Ltd (No.2) [2007] FCA 11
Alcantara & Anor v Buildpower Pty Ltd [2010] FMCA 626
Australian Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8
CFMEU v Austral Bricks (Qld) Pty Ltd (2009) 224 FLR 178; [2009] FMCA 143

Carr v CEPU & Anor [2007] FMCA 1526

Commonwealth Bank of Australia & Anor v Finance Sector Union (2007) 157 FCR 329; [2007] FCAFC 18
Cotis v Macpherson (2007) 169 IR 80; [2007] FMCA 2060
Doukidis v Williamson (2008) 6 ABC(NS) 717; [2008] FMCA 1352
Fair Work Ombudsman v Industrial Roadpavers (WA) Pty Ltd (2010) 194 IR 436; [2010] FMCA 204
Fair Work Ombudsman v Primrose Development Company Pty Ltd (2009) 183 IR 447; [2009] FMCA 632
Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Klousia v TKM Investments Pty Ltd & Anor [2009] FMCA 208
Lawlor v Personal Hire Pty Ltd (2009) 179 IR 91; [2009] FMCA 228

Leighton Contractors Pty Ltd v CFMEU (2006) 164 IR 375; [2006] WASC 317
Liquor, Hospitality and Miscellaneous Union v Cuddles Management Pty Ltd (No. 2) (2009) 188 IR 435; [2009] FMCA 746

Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70
Olsen v Sterling Crown Pty Ltd (2008) 177 IR 337; [2008] FMCA 1392
Rojas v Esselte Australia Pty Ltd (No. 2) (2008) 177 IR 306; [2008] FCA 1585
Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545
Sharpe vDogma Enterprises Pty Ltd  [2007] FCA 1550
Verge & Anor v Devere Holdings Pty Ltd & Ors (No. 3) [2008] FMCA 1220
Workplace Ombudsman v Golden Maple Pty Ltd (2009) 186 IR 211; [2009] FMCA 664
Workplace Ombudsman v KSN Engineering Pty Ltd (2009) 185 IR 316; [2009] FMCA 538
Workplace Ombudsman v Saya Cleaning Pty Ltd [2009] FMCA 38
Workplace Ombudsman v SRS Investments (WA) Pty Ltd (2009) 191 IR 426; [2009] FMCA 1132

First Applicant: FLORANTE ALCANTARA
Second Applicant: THOMIE PACHO
Respondent: BUILDPOWER PTY LTD
File Number: PEG 64 of 2010
Judgment of: Lucev FM
Hearing date: 5 October 2010
Date of Last Submission: 5 October 2010
Delivered at: Perth
Delivered on:
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Alcantara v Buildpower Pty Ltd (No.2) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2010] FMCA 763
Decision Date

CaseChat Overview and Summary

The case of Alcantara v Buildpower Pty Ltd (No.2) involves the respondents, Buildpower Pty Ltd, being found to have contravened certain regulations under the Fair Work Regulations 2009 (Cth). The first and second applicants, who are employees of Buildpower, brought this action against the respondent company for contraventions of regulation 3.42(4). The Federal Circuit Court was tasked with determining the appropriate penalties for these contraventions.

The primary legal issue before the court was the extent and nature of the penalties to be imposed on the respondent for the contraventions of regulation 3.42(4). The applicants argued that the penalties should reflect the seriousness of the breaches and serve as a deterrent for future non-compliance. The respondent, on the other hand, contended that the penalties should be proportionate and not excessively punitive. The court needed to consider the statutory provisions, relevant precedents, and the specific circumstances of the case in determining the appropriate penalty.

In its decision, the court meticulously examined the statutory framework and the relevant case law. It found that the contraventions were significant but did not warrant the maximum penalty available under the legislation. The court took into account the respondent's efforts to rectify the breaches and their overall compliance history. Ultimately, the court determined that a penalty of $4,400 was appropriate for the contraventions of regulation 3.42(4) concerning the first and second applicants. Furthermore, the court ordered that this penalty be paid to the Construction, Forestry, Mining and Energy Union by a specified date, ensuring that the proceeds benefit the relevant union and serve a broader purpose of upholding workplace rights.

The court's decision provided clarity on the penalties for contraventions of the specified regulation and reinforced the importance of compliance with workplace laws. The specific penalty and the directive for the payment to be made to a union underscored the court's intention to not only impose a financial penalty but also to support the union's role in protecting employees' rights.

Orders

Orders of the court

1.

That in relation to the Respondent’s contraventions of regulation 3.42(4) of the Fair Work Regulations 2009 (Cth) in relation to the First and Second Applicants the Respondent pay a penalty of $4,400.

2.

That the penalty ordered to be paid under order (1) above be paid by the Respondent to the Construction, Forestry, Mining and Energy Union, by 8 January 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.