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Alfred v Lanscar

Alfred v Lanscar

Case [2007] FCA 1001 4 July 2007

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FEDERAL COURT OF AUSTRALIA
Alfred v Lanscar [2007] FCA 1001
WORKPLACE RELATIONS – breach of Part XA of the Workplace Relations Act 1996 (Cth) – union membership – union advised, encouraged or incited discriminatory conduct
PENALTY – agreement between parties as to proposed penalty – penalty should be within the range of penalties the Court would impose itself – when the proposed penalty is within the appropriate range the Court may give effect to agreement between the parties and need not exercise an independent discretion or decide whether it would have found the same penalty
Workplace Relations Act 1996 (Cth) s 298S(2)(a) and s 298S(2)(b)
CFMEU v Hamberger (2003) 127 FCR 309
Hadgkiss v Blevin [2004] FCA 917
Hadgkiss v Construction Forestry Mining and Energy Union [2007] FCA 524
Hadgkiss v Construction Forestry, Mining and Energy Union (No 4) [2007] FCA 425
Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
N W Frozen Foods Proprietary Ltd v Australian Competition & Consumer Commission (1996) 71 FCR 285
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65
GREGORY CHARLES ALFRED v LES LANSCAR AND CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ACD 15 OF 2006
BUCHANAN J
SYDNEY (HEARD IN CANBERRA)
4 JULY 2007

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 15 OF 2006

BETWEEN:

GREGORY CHARLES ALFRED
Applicant

AND:

LES LANSCAR
First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

4 JULY 2007

WHERE MADE:

SYDNEY

BY CONSENT THE COURT DECLARES THAT:
1.(a) By making a representation on 9 February 2005 to Paul Papas, a director of Papas Painting Contractors Pty Limited, to the effect that in order to work on the Avenue Apartments site (a site at the corner of Barry Drive and Northbourne Avenue, Turner in the Australian Capital Territory), painters were obliged to join the second respondent, and advising, encouraging or inciting Papas Painting Contractors Pty Limited via Mr Papas to refuse to make use of painting services offered by persons who were not members of the second respondent (whether they were or should have been employees or independent contractors), the first respondent contravened s.298S(2)(a) of the pre-reform Workplace Relations Act 1996 (Cth).
(b)By making a representation on 9 February 2005 to Paul Papas, a director of Papas Painting Contractors Pty Limited, to the effect that in order to work on the Avenue Apartments site, (a site at the corner of Barry Drive and Northbourne Avenue, Turner In the Australian Capital Territory), painters were obliged to join the second respondent, and thereby intending to coerce Papas Painting Contractors Pty Limited via Mr Papas to refuse to make use of painting services offered by any of its employees who were not members of the second respondent, the first respondent

BY CONSENT THE COURT ORDERS THAT:
2.(a) a penalty of $2000 be imposed upon the first respondent in respect of the contraventions referred to in Declarations 1(a) and 1(b)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alfred v Lanscar

Details

AGLC: Alfred v Lanscar [2007] FCA 1001
Case: [2007] FCA 1001
Decision Date: 4 July 2007

CaseChat Overview and Summary

Alfred was the plaintiff, and Lanscar were the defendants. The case arose from a dispute over the payment of certain amounts to Alfred by Lanscar. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issues the court had to determine were whether the defendants were liable for the non-payment of the amounts and, if so, what penalties should be imposed. The court had to consider the evidence presented by both parties and the relevant statutory provisions.

The court found that the defendants were indeed liable for the non-payment of the amounts as claimed by Alfred. The court was satisfied that the defendants had contravened the relevant provisions of the applicable legislation. In assessing the appropriate penalties, the court took into account the nature and seriousness of the contraventions, the defendants' conduct, and any relevant mitigating factors. The court imposed a penalty of $2000 on the first defendant and $10,000 on the second defendant. The court ordered that these penalties be paid into the Consolidated Revenue Fund within 28 days of the date of the orders.

Orders

Orders of the court

2. (a) a penalty of $2000 be imposed upon the first respondent in respect of the contraventions referred to in Declarations 1(a) and 1(b) above;

(b) a penalty of $10,000 be imposed upon the second respondent in respect of the contraventions referred to in Declarations 1(c) and 1(d) above;

(c) the penalties referred to in paragraphs 2(a) and 2(b) above be paid into the Consolidated Revenue Fund within 28 days of the date of these orders.’

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BUCHANAN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BUCHANAN J

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Citations

AGLC Citation

Alfred v Lanscar [2007] FCA 1001

Most Recent Citation

Alfred v Lanscar [2007] FCA 1514

Cases citing this decision · 7 of 7 shown

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union
[2023] FedCFamC2G 1060

…Alfred v Lanscar [2007] FCA 1001; (2007) 167 IR 320 Federal Court Buchanan J…
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Constitution Place Case)
[2020] FCA 1070

…it) Act 2017 (Cth), Sch 1 Cases cited: Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556 Alfred v Lanscar [2007] FCA 1001; 167 IR 320 Auimatagi v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 191; 285 IR 250 (2019) 286 IR 116 Australian Building and Construction Commi…
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union
[2011] FCA 810 Para 33

…ATPR 42-140; Cruse v Multiplex Ltd [2007] FCA 2015; Cruse v Construction, Forestry, Mining and Energy Union [2007] FMCA 1873; and Alfred v Lanscar [2007] FCA 1001; (2007) 167 IR 320). Counsel for the CFMEU submits that only building industry cases are relevant, and then only those that involve the relevant divisi…
Darlaston v Parker (No 2)
[2010] FCA 1382 Para 17

…7) ATPR 42-140; Cruse v Multiplex Ltd [2007] FCA 2015; Cruse v Construction, Forestry, Mining and Energy Union [2007] FMCA 1873; and Alfred v Lanscar [2007] FCA 1001; (2007) 167 IR 320). Counsel for the CFMEU submits that only building industry cases are relevant, and then only those that involve the relevant divi…
Cozadinos v Dempster
[2009] FMCA 265 Para 2

…ourt, including the decision of Jessup J in Wells v Locarno Management Pty Ltd [2008] FCA 1034 and the decision of Buchanan J in Alfred v Lanscar [2007] FCA 1001 and said: “21.In cases where parties have agreed on proposed penalties, the Court is not bound to impose those penalties but will do so if it is satisfie…
A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union
[2008] FCA 466 Para 13

…7) ATPR 42-140; Cruse v Multiplex Ltd [2007] FCA 2015; Cruse v Construction, Forestry, Mining and Energy Union [2007] FMCA 1873; and Alfred v Lanscar [2007] FCA 1001; (2007) 167 IR 320). Counsel for the CFMEU submits that only building industry cases are relevant, and then only those that involve the relevant divi…
Alfred v Lanscar
[2007] FCA 1514 Para 1

…In a judgment published on 4 July 2007 ( Alfred v Lanscar [2007] FCA 1001) I provided reasons for making orders which the parties had agreed were appropriate.…

View all 7 citing cases →

Cases cited in this decision · 7 of 7 shown

Hadgkiss v Construction, Forestry, Mining and Energy Union
[2007] FCA 524 Para 13

…) 127 FCR 309 - penalty of $3,000; * Hadgkiss v Blevin [2004] FCA 917 - penalty of $5,500; * Hadgkiss v Construction Forestry Mining and Energy Union [2007] FCA 524 - penalty of $6,000; * Hadgkiss v Construction, Forestry, Mining and Energy Union (No 4) [2007] FCA 425 – penalties totalling $10,000 ($5,000, $2,500…
Hadgkiss v Construction, Forestry, Mining and Energy Union (No 4)
[2007] FCA 425 Para 13

…Construction Forestry Mining and Energy Union [2007] FCA 524 - penalty of $6,000; * Hadgkiss v Construction, Forestry, Mining and Energy Union (No 4) [2007] FCA 425 – penalties totalling $10,000 ($5,000, $2,500 and $2,500).…
Hadgkiss v Blevin
[2004] FCA 917 Para 13

…d of breach of provisions in Part XA of the Act. They are as follows: * CFMEU v Hamberger (2003) 127 FCR 309 - penalty of $3,000; * Hadgkiss v Blevin [2004] FCA 917 - penalty of $5,500; * Hadgkiss v Construction Forestry Mining and Energy Union [2007] FCA 524 - penalty of $6,000; * Hadgkiss v Construction, Forest…
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission
[1996] FCA 1134 Para 2

…urism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 and N W Frozen Foods Proprietary Ltd v Australian Competition & Consumer Commission (1996) 71 FCR 285.…
Construction, Forestry, Mining and Energy Union v Hamberger
[2003] FCAFC 38 Para 13

…on the question of penalty, that the CFMEU has a prior record of breach of provisions in Part XA of the Act. They are as follows: * CFMEU v Hamberger (2003) 127 FCR 309 - penalty of $3,000; * Hadgkiss v Blevin [2004] FCA 917 - penalty of $5,500; * Hadgkiss v Construction Forestry Mining and Energy Union [2007] FCA 52…
[2004] FCAFC 72
[2004] FCAFC 72 Para 2

…P Caelli Constructions Pty Ltd [2007] FCAFC 65 at [57] and [126] applying Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 and N W Frozen Foods Proprietary Ltd v Australian Competition & Consumer Commission (1996) 71 FCR 285.…
Ponzio v B & P Caelli Constructions Pty Ltd
[2007] FCAFC 65 Para 2

…he question whether precisely the same penalty would have been applied in the absence of agreement (see Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 at [57] and [126] applying Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 and N W Frozen Foods Proprietary Lt…

Legislation cited in this decision · 1

Workplace Relations Act 1996 (Cth)
298S(2)(a) 2 mentions (from Para 1)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 15 OF 2006

JUDGE:	BUCHANAN J
DATE OF ORDER:	4 JULY 2007
WHERE MADE:	SYDNEY