FEDERAL COURT OF AUSTRALIA
Alfred v Walter Construction Group Limited [2005] FCA 497
INDUSTRIAL LAW – Workplace Relations Act 1996 (Cth) – Part VIB Certified Agreements – where respondent admitted contravention at commencement of hearing – making of a declaration – fixing of penalty – matters to be considered – totality principle – mitigating factors
Workplace Relations Act 1996 (Cth) s 170NC, s 170NF
Federal Court Rules O 11 r 1B, O 11 r 13
Cameron v R (2002) 209 CLR 339 distinguished
Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 applied
CPSU, theCommunity and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 cited
Schanka v Employment National (Administration) Pty Limited (No 2) (2001) 114 FCR 379 referred toINSPECTOR GREGORY CHARLES ALFRED v WALTER CONSTRUCTION GROUP LIMITED (ACN 008 390 074), JOHN STORER, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF AUSTRALIA, PETER ZABOYAK AND DAVID KELLY
NSD 775 of 2003
BRANSON J
3 MAY 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 775 of 2003
BETWEEN:
INSPECTOR GREGORY CHARLES ALFRED
APPLICANTAND:
WALTER CONSTRUCTION GROUP LIMITED (ACN 008 390 074)
FIRST RESPONDENTJOHN STORER
SECOND RESPONDENTCONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF AUSTRALIA
THIRD RESPONDENTPETER ZABOYAK
FOURTH RESPONDENTDAVID KELLY
FIFTH RESPONDENTJUDGE:
BRANSON J
DATE OF ORDER:
3 MAY 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.It be declared that, having regard to the facts and matters set out in paragraphs 28, 29, 30, 31, 32 and 33 of the second further amended statement of claim, the third respondent contravened subsection 170NC(1) of the Workplace Relations Act 1996 (Cth) (‘the Act’) on the occasions, and in the respects, set out in paragraphs 29.7, 31.7 and 33.7 of the second further amended statement of claim;
2.A penalty of $2500 be imposed on the third respondent for the contravention of s 170NC of the Act pleaded by paragraph 29.7 of the second further amended statement of claim;
3.A penalty of $2500 be imposed on the third respondent for the contravention of s 170NC of the Act pleaded by paragraph 31.7 of the second further amended statement of claim;
4.A penalty of $2500 be imposed on the third respondent for the contravention of s 170NC of the Act pleaded by paragraph 33.7 of the second further amended statement of claim;
5.The third respondent pay into the Consolidated Revenue Fund the total of penalties being $7500 within twenty‑eight (28) days of the date of these orders;
6.The proceeding be otherwise dismissed.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 775 of 2003
BETWEEN:
INSPECTOR GREGORY CHARLES ALFRED
APPLICANTAND:
WALTER CONSTRUCTION GROUP LIMITED (ACN 008 390 074)
FIRST RESPONDENTJOHN STORER
SECOND RESPONDENTCONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF AUSTRALIA
THIRD RESPONDENTPETER ZABOYAK
FOURTH RESPONDENTDAVID KELLY
FIFTH RESPONDENT
JUDGE:
BRANSON J
DATE:
3 MAY 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
As…
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- Case
- [2005] FCA 497
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the employer had indeed contravened subsection 170NC(1) of the Act by failing to provide the necessary documentation, and if so, to what extent. The court also needed to decide on the appropriate penalties to impose for these contraventions, as well as whether to grant a declaration as requested by Alfred.
The court found that the employer had contravened the Act as alleged by Alfred. It held that the employer's failure to provide the required documentation was a clear breach of the statutory obligations. The court imposed penalties for each contravention identified, totalling $7500, and ordered the employer to pay these penalties into the Consolidated Revenue Fund within 28 days of the order. The court dismissed the remainder of Alfred's claim.
The court issued an order declaring that the employer contravened subsection 170NC(1) of the Workplace Relations Act 1996 (Cth) in the specific instances detailed in the second further amended statement of claim. It imposed a penalty of $2500 for each of the three contraventions, resulting in a total penalty of $7500. The employer was ordered to pay this amount into the Consolidated Revenue Fund within 28 days. The court dismissed the remainder of the proceeding, finding in favour of the employer on those other claims.
Orders
Orders of the court
1. It be declared that, having regard to the facts and matters set out in paragraphs 28, 29, 30, 31, 32 and 33 of the second further amended statement of claim, the third respondent contravened subsection 170NC(1) of the Workplace Relations Act 1996 (Cth) (‘the Act’) on the occasions, and in the respects, set out in paragraphs 29.7, 31.7 and 33.7 of the second further amended statement of claim;
2. A penalty of $2500 be imposed on the third respondent for the contravention of s 170NC of the Act pleaded by paragraph 29.7 of the second further amended statement of claim;
3. A penalty of $2500 be imposed on the third respondent for the contravention of s 170NC of the Act pleaded by paragraph 31.7 of the second further amended statement of claim;
4. A penalty of $2500 be imposed on the third respondent for the contravention of s 170NC of the Act pleaded by paragraph 33.7 of the second further amended statement of claim;
5. The third respondent pay into the Consolidated Revenue Fund the total of penalties being $7500 within twenty‑eight (28) days of the date of these orders;
6. The proceeding be otherwise dismissed.
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
Established by: BRANSON J
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