Barrass v State of Victoria - [1999] FCA 1166

FEDERAL COURT OF AUSTRALIA
Barrass v State of Victoria [1999] FCA 1166
INDUSTRIAL LAW – award interpretation – whether applicants entitled to paid leave pursuant to relevant award – whether cl 16 of the award only applicable to persons relevantly employed as at the date of the making of the award – whether cl 16 of the award has retrospective operation and accordingly entitles those employed at “the date of commencement” of the award to leave loading – meaning of “the date of commencement of this award”.
WORDS & PHRASES – “the date of commencement of this award”
Workplace Relations Act 1996 (Cth) s178
Public Sector Management Act 1992 (Vic)
Public Service (Non Executive Staff-Victoria) Interim Award 1996
Re Municipal Officers (Brisbane City Council) Interim Award (1966) 8 FLR 297, referred to
Corlett Bros. Pty Ltd v Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch [1975] WAIG 644, referred to
Telegraph Newspaper Co Pty Ltd v Australian Journalists’ Association (1962) 3 FLR 39, referred to
City of Wanneroo v Holmes (1989) 30 IR 362, referred to
Printing and Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444, followed
Federated Engine-Drivers’ and Firemen’s Association of A/asia v Adelaide Chemical and Fertilizer Co Ltd (1920) 28 CLR 1, followed
Tziortis v ACI Australian Glass Manufacturers Co (1973) 22 FLR 60, distinguished
IAN BARRASS (& OTHERS ACCORDING TO SCHEDULE 1) v STATE OF VICTORIA
VG 303 OF 1998
MARSHALL J
MELBOURNE
24 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 303 OF 1998

BETWEEN:

IAN BARRASS (& OTHERS ACCORDING TO SCHEDULE 1)
Applicant

AND:

STATE OF VICTORIA
Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

24 AUGUST 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.It is declared that the respondent has breached and/or failed to observe the terms of cl 16 of the Public Service (Non Executive Staff-Victoria) Interim Award 1996 (“the Award”) by failing to pay each applicant leave loading in respect of the periods set out in the schedule to this order which is entitled “Schedule A”.
2.The application be adjourned until 9.30 am on 14 September 1999 for the hearing of submissions concerning any other order which the parties contend that the Court should make as a consequence of the Court’s reasons for judgment delivered today.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
SCHEDULE A

NAME

TERMINATION DATE

BARRASS, lan 4 March 1994 to February 1996

BATCH, Steve 4 March 1994 to 21 June 1996

BENEDICT, Simon 4 March 1994 to 30 June 1996

BERTOLUS, Kim 4 March 1994 to 1 November 1996

CLEELAND, Jason 4 March 1994 to 2 February 1996

DILLON, Kathleen 4 March 1994 to 10 May 1996

GRANNAS, Linda 4 March 1994 to 4 October 1996

HINES, Geoff 4 March 1994 to 3 November 1995

HUNT, Jan 4 March 1994 to 26 September 1996

LU, C.C. 4 March…

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 Barrass v State of Victoria

Details

AGLC: Barrass v State of Victoria [1999] FCA 1166
Case: [1999] FCA 1166
Decision Date: 24 AUGUST 1999

CaseChat Overview and Summary

The case of Barrass v State of Victoria involved several applicants who sought a declaration that the respondent, the State of Victoria, had breached the terms of clause 16 of the Public Service (Non Executive Staff-Victoria) Interim Award 1996. The applicants, who were employees of the respondent, alleged that they were not paid leave loading for certain periods of leave they had taken. The matter was heard in the County Court of Victoria. The applicants claimed that they were entitled to leave loading for the periods of leave they took, as provided under clause 16 of the Award. The respondent, on the other hand, argued that the applicants were not entitled to leave loading for those periods. The court had to determine whether the respondent had breached the terms of the Award by failing to pay leave loading to the applicants for the periods of leave they took. The court also had to consider whether any other orders should be made as a consequence of its decision. In its judgment, the court found that the respondent had breached the terms of clause 16 of the Award by failing to pay leave loading to the applicants for the periods of leave they took. The court held that the Award required the respondent to pay leave loading to the applicants for those periods, and that the respondent’s failure to do so was a breach of the Award. The court also held that the applicants were entitled to leave loading for the periods of leave they took, as provided under clause 16 of the Award. The court found that the respondent’s failure to pay leave loading to the applicants for those periods constituted a breach of the Award, and that the applicants were entitled to be paid leave loading for those periods. The court ordered that it be declared that the respondent had breached and/or failed to observe the terms of clause 16 of the Award by failing to pay each applicant leave loading in respect of the periods set out in the schedule to the order. The application was adjourned until 9.30 am on 14 September 1999 for the hearing of submissions concerning any other order which the parties contended that the Court should make as a consequence of the Court’s reasons for judgment delivered that day.

Orders

Orders of the court

1. It is declared that the respondent has breached and/or failed to observe the terms of cl 16 of the Public Service (Non Executive Staff-Victoria) Interim Award 1996 (“the Award”) by failing to pay each applicant leave loading in respect of the periods set out in the schedule to this order which is entitled “Schedule A”.

2. The application be adjourned until 9.30 am on 14 September 1999 for the hearing of submissions concerning any other order which the parties contend that the Court should make as a consequence of the Court’s reasons for judgment delivered today.

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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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 303 OF 1998

BETWEEN:	IAN BARRASS (& OTHERS ACCORDING TO SCHEDULE 1) Applicant
AND:	STATE OF VICTORIA Respondent
JUDGE:	MARSHALL J
DATE OF ORDER:	24 AUGUST 1999
WHERE MADE:	MELBOURNE

NAME	TERMINATION DATE
BARRASS, lan	4 March 1994 to February 1996
BATCH, Steve	4 March 1994 to 21 June 1996
BENEDICT, Simon	4 March 1994 to 30 June 1996
BERTOLUS, Kim	4 March 1994 to 1 November 1996
CLEELAND, Jason	4 March 1994 to 2 February 1996
DILLON, Kathleen	4 March 1994 to 10 May 1996
GRANNAS, Linda	4 March 1994 to 4 October 1996
HINES, Geoff	4 March 1994 to 3 November 1995
HUNT, Jan	4 March 1994 to 26 September 1996
LU, C.C.	4 March…