AMIEU v Greenmountain Food Processing

[2015] FCCA 2655

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMIEU v GREENMOUNTAIN FOOD PROCESSING [2015] FCCA 2655

Catchwords:

INDUSTRIAL LAW – Contravention of s.501 of FW Act – breach admitted – pecuniary penalty – penalty to be paid to the Commonwealth.

Legislation: 

Fair Work Act 2009 (Cth), ss.484, 501, 512, and 518

United Voice v MDBR123 Proprietary Limited [2015] FCA 76

Applicant: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION

Respondent: GREENMOUNTAIN FOOD PROCESSING

File Number: BRG 467 of 2015

Judgment of: Judge Vasta

Hearing date: 3 September 2015

Date of Last Submission: 3 September 2015

Delivered at: Brisbane

Delivered on: 3 September 2015

REPRESENTATION

Counsel for the Applicant: Mr E. Dalgleish

Solicitors for the Applicant: Australasian Meat Industry Employees' Union

Counsel for the Respondent: Mr P.A. Hardman

Solicitors for the Respondent: Holding Redlich Lawyers

ORDERS

1. That the Respondent pay a pecuniary penalty pursuant to s.546 of the Fair Work Act 2009 (Cth) (“the Act”) for a contravention of s.501 of the Act.

2. That the Respondent pay a pecuniary penalty in the amount of $12,000 to be paid to the Commonwealth of Australia within six (6) months from the date of these Orders.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 467 of 2015

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION

Applicant

And

GREENMOUNTAIN FOOD PROCESSING

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. This is a proceeding for the imposition of a pecuniary penalty.  The facts of the matter are contained in the affidavit of Mr Ronald Charles Western, filed in this court on 28 May 2015 and that of Jason Todd Giddens, filed in this court on 11 August 2015.  

2. Without going too far into the facts, what can be gleaned is that the Applicant union had, on a number of occasions, visited the premises of the Respondent, which led the Respondent to not be particularly happy with what had gone on in those visits.  This led to proceedings before the Fair Work Commission. The Fair Work Commission issued a recommendation in May of 2014 which lasted for three months, and the matter was, in effect, adjourned for either party to bring the matter back.

3. The Respondent claims that there had been breaches, if not of the words, at least of the spirit of the recommendation, conceding, however, that the recommendation had no force of law. That is useful background to what then occurred on the 15 January 2015. Two days previously to that, Mr Western, who is the holder of entry permit under s.512 of the Fair Work Act 2009 (Cth) (“FW Act”), applied for notice that he was to enter the premises of the Respondent on 15 January 2015. The notice that was given to the Respondent satisfied the requirements of s.484 and s.518 of the FW Act.

4. On 15 January 2015, Mr Western arrived at the plant to enter the premises. Upon arrival, Mr Giddens refused Mr Western entry onto the premises. This was a contravention of s.501 of the FW Act, and that is what brought the matter to this Court.

5. To their great credit, the Respondent has admitted the breach very early on in the proceedings and has shortened these proceedings to one simply for the imposition of a pecuniary penalty by this Court. It is trite to say that union officials can exercise the right of entry onto premises occupied by the employer under the FW Act as long as there is 24 hours’ notice and the notice that is supplied to the employer is one that is proper under the FW Act.

6. That is one of the quite important provisions of the FW Act. To my mind, one has to look at the industrial relations regime that obtains in this country. There is always going to be some tension between employers and employees.

7. Employee representatives, such as the Applicant, are also going to have some tension between themselves and employers. To ensure, as best we can, that there is a proper regime that is set up so as to ensure industrial harmony, it is important that all persons in society respect the law as it has been enacted by Parliament. Parliament enacted the FW Act for this very reason.

8. If people do not respect the FW Act, then we will have anarchy, and the industrial relations regime will disintegrate to a point where, not only within the country, but externally, a deleterious result will mean that workers and the Australian society as a whole are going to be affected.

9. It is for this reason that, in my view, any breach of this FW Act is serious. It was submitted to me that this breach was a flagrant breach; that is, that it could not be clearer that the FW Act allows entry. The notice was duly given, the notice was a proper notice, and yet Mr Western was denied entry. Whilst one can argue whether this breach should be labelled as “flagrant” in relation to the whole of the circumstances, it is obviously a very clear and a very obvious breach.

10. It was a deliberate breach, it was a debasement of the rule of law, and senior management were involved.  It is for this reason that I look upon this matter extremely seriously.  When one has a look at the penalty regime that pertains to this case, this breach is one that ought be meted out with a substantial penalty. 

11. To my mind, the overriding factor which should influence the penalty in this matter is deterrence, both specific and general.

12. There are matters to be taken into account in mitigation.  If it were not for that, I would have imposed a far more serious penalty than the one that I will impose.  The maximum penalty is 300 penalty units.  At the point in time that this breach occurred, a penalty unit was $170.00.  Therefore, the maximum penalty was one of $51,000.00.

13. It is my view that the appropriate starting point for a breach the calibre of this matter would be one in the region of $20,000.00. 

14. There are matters that have occurred here that would reduce that penalty.  The most significant matter is the very timely action by the Respondent to admit the breach and save the costs of Court and the unnecessary hardship of witnesses having to come here, give evidence and be cross-examined.  I also take into account that the Respondent has, as it were, owned up to what they have done.

15. The Respondent has said that, when one has a look at all of these circumstances, that while there is no justification for the action, these matters must be put into context.  I accept that for the reasons Mr Giddens swears in his affidavit, he was doing something that he thought, mistakenly, was protecting his employees. But, in protecting his employees, as he may have thought he was doing, he was, in fact, committing a very severe breach of the law and of the industrial relations regime. However, I understand the context in which that was done. 

16. The employer Respondent is, I am told, an employer who has never had any breaches of the FW Act noted against them.

17. They employ some 151 employees.  They are located in the Lockyer Valley.  One does not have to have specific evidence, if one has lived in this State over the past 10 years, to realise that it would be difficult for the employer to run the business that they are running at this point in time, and their margins are slim.  They have also expended money in defending this action, and because the action was originally brought in a Court that did not have the proper jurisdiction, they have had to pay further costs.  So for all of those reasons, the discount, as it were, that I will give on what I would originally have proposed is a 40 per cent discount.

18. I will make a pecuniary penalty order against the Respondent in the sum of $12,000.00. 

19. I note that the Applicant and Respondent had agreed that the pecuniary penalty would be paid to the Applicant.  However, it is my view, for the very reasons that I have concluded that this is such a serious breach, that one must consider this matter, first and foremost, as a breach of the law of the Commonwealth.  When the law of the Commonwealth has been breached in this way, it is all of society that suffers, not simply the Applicant.  The Applicant is, in effect, a complainant.

20. Such thinking permeates the judgement of the Full Court of the Federal Court in Director of Fair Work Building Industry Inspectorate v CFMEU and Ors (2015) 229 FCR 331. That case is authority for the proposition that the situation in cases of the assessment of pecuniary penalties is analogous to a criminal sentencing proceeding.

21. Notwithstanding what has been often termed in these courts as “the usual order” and what His Honour, Rangiah J, said in United Voice v MDBR123 Proprietary Limited [2015] FCA 76, I am of the view that considerations other than the trouble, risk and expense of the applicant initiating proceedings are more important in these matters.

22. It is a deterrent that the Applicant is after, not an exercise to enrich the Applicant. Having the Court maintain the integrity of the industrial relations regime should be the aim of the applicant. Making an order that will deter the respondent from behaving in this way again must be the outcome desired the applicant. Letting all within the industrial relations regime know that the Court will deal seriously with breaches of the FW Act is the result that benefits the applicant greatly.

23. Those ideals supersede what is “the usual order” or “the usual practice”. It seems to me that ordering that pecuniary penalties imposed for breaches of the law of the Commonwealth, be paid to entities other than the Commonwealth, has the potential to upset the balance achieved by the FW Act. It may be thought that applicants have motivations other than maintenance of the Rule of Law in pursuing civil remedies, if pecuniary penalties are routinely paid to them rather than the Commonwealth.

24. Of course, it may be different if an applicant has suffered financially because of the breach of the FW Act or suffered financially in bringing the action before the Court. In a case such as that, there has been a loss sustained by a party seeking justice. Therefore, in that case, justice would demand that such payment be made to an applicant. But this is not the case here.

25. The Full Court of the Federal Court has not made any definitive statement of the sort that “the default provision should be that pecuniary penalties should be paid to the Commonwealth unless there is a significant reason that payment should be made to another entity”. Every case must be looked at individually and the discretion applied properly and that is what I have done in this case.

26. For the reasons previously mentioned, this is a matter where the penalty, in my view, ought be paid to the Commonwealth. 

27. The orders, then, I make are that the Respondent pay to the Commonwealth of Australia the sum of $12,000.00 by way of pecuniary penalty within six months of today’s date.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  26 October 2015