Alfred v Primmer

Case [2009] FMCA 158

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALFRED v PRIMMER & ORS [2009] FMCA 158
INDUSTRIAL LAW – Workplace Relations Act 1996 – breaches – civil penalty – consideration of matters relevant to penalty – two breaches arising out of one course of conduct – only one penalty imposed on each respondent – totality principle distinguished.
Workplace Relations Act 1996, ss.792, 793, 779, 800, 806, 807, 826
Building and Construction Industry Improvement Act 2005, s.73
Trade Practices Act 1974, s.45D
Alfred v Primmer & Ors (No. 2) [2008] FMCA 1476
Construction, Forestry, Mining & Energy Unionv Coal & Allied Operations Pty Ltd (No.2)(1999) 94 IR 231
Kelly v Fitzpatrick [2007] FCA 1080
Hadgkiss v Sunland Constructions (Qld) Pty Ltd [2006] FCA 1566
Hadgkiss v Construction, Forestry, Mining & Energy Union [2007] FCA 524
A&L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy [2008] FCA 466
Pearce v The Queen (1998) 194 CLR 610
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
Hamburger v Construction, Forestry, Mining & Energy Union [2002] FCA 585
Veen v R (No.2) (1998) 164 CLR 465
R v Armstrong (1996) 1 Qd R 316
Leighton Contractors v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (No.3) [2008] FCA 1426
Cahill v Construction, Forestry, Mining & Energy Union [2008] FCA 495
CPSU, The Community & Public Sector Union v Telstra Corporation Limited [2001] FCA 1364
Financial Sector Union v Commonwealth Bank of Australia (2005) 147 IR 462
Trade Practices Commission v CSR Ltd [1991] ATPR 41-076
ASIC v Australian Investors Forum Pty Ltd (No.3) [2005] NSWSC 1198
Applicant: GREGORY CHARLES ALFRED
First Respondent: PETER PRIMMER
Second Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Third Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH)
File Number: SYG 1222 of 2007
Judgment of: Cameron FM
Hearing dates: 10 February 2009
Date of Last Submission: 10 February 2009
Delivered at: Sydney
Delivered on: 3 March 2009

REPRESENTATION

Counsel for the Applicant: Mr I. Neil S.C. with Mr C. Bolger
Solicitors for the Applicant: Bartier Perry
Counsel for the Respondents: Mr J.H. Pearce
Solicitors for the Respondents: Taylor & Scott

ORDERS

  1. The first respondent pay a penalty of $3,500 for breaches of s.800(1)(a) of the Workplace Relations Act 1996 on 12 October 2006.

  2. The second respondent pay a penalty of $10,000 for breaches of s.800(1)(a) of the Workplace Relations Act 1996 on 12 October 2006.

  3. The third respondent pay a penalty of $10,000 for breaches of s.800(1)(a) of the Workplace Relations Act 1996 on 12 October 2006.

  4. Each penalty be paid to the Commonwealth within 28 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1222 of 2007

GREGORY CHARLES ALFRED

Applicant

And

PETER PRIMMER

First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH)

Third Respondent

REASONS FOR JUDGMENT

Introduction

  1. The applicant, an Australian Building and Construction Inspector, has brought these proceedings seeking pecuniary penalties be…

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Details
AGLC
Alfred v Primmer [2009] FMCA 158
Case
[2009] FMCA 158
Decision Date

CaseChat Overview and Summary

Alfred brought an action against Primmer in the Federal Circuit and Family Court of Australia. The dispute arose from alleged breaches of section 800(1)(a) of the Workplace Relations Act 1996, which pertains to the failure to provide employees with a Fair Work Information Statement. The plaintiffs, Alfred, claimed that Primmer, as an employer, had failed to furnish the requisite information to employees, in breach of statutory obligations.

The primary legal issues before the court were whether Primmer had indeed failed to comply with the statutory requirements and, if so, whether the penalties imposed were justified and proportionate. The court needed to interpret the scope and application of section 800(1)(a) and determine the appropriate penalties under the circumstances.

The court found that Primmer had indeed breached the statutory obligations by not providing the Fair Work Information Statement to employees. The court considered the severity of the breaches and the intent behind them, if any, in determining the penalties. After weighing the evidence and submissions from both parties, the court concluded that the breaches were serious and warranted substantial penalties. The differing penalties among the respondents were justified based on the specific circumstances of each case, including the number of employees affected and the duration of the breaches.

The court ordered the first respondent to pay a penalty of $3,500, and the second and third respondents to each pay a penalty of $10,000. Each penalty was to be paid to the Commonwealth within 28 days of the judgment.

Orders

Orders of the court

1.

The first respondent pay a penalty of $3,500 for breaches of s.800(1)(a) of the Workplace Relations Act 1996 on 12 October 2006.

2.

The second respondent pay a penalty of $10,000 for breaches of s.800(1)(a) of the Workplace Relations Act 1996 on 12 October 2006.

3.

The third respondent pay a penalty of $10,000 for breaches of s.800(1)(a) of the Workplace Relations Act 1996 on 12 October 2006.

4.

Each penalty be paid to the Commonwealth within 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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