WORKPLACE RELATIONS imposition of penalty for breach by Union of order of Australian Industrial Relations Commission.
Lynch v Buckley Sawmills Pty Ltd (1984) 3 FCR 503 Masters v Highway One Pty Ltd (1990) 33 IR 1 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Transport Workers Union of Australia v Glynburn Contractors (Salisbury) Pty Ltd (1991) 37 IR 313
BHP STEEL (AIS) PTY LIMITED V CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
NO. N 150 OF 2000
JUDGE: BEAUMONT J DATE: 21 DECEMBER 2000 PLACE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 150 OF 2000
BETWEEN:
BHP STEEL (AIS) PTY LIMITED APPLICANT
AND:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION RESPONDENT
JUDGE:
BEAUMONT J
DATE OF ORDER:
21 DECEMBER 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Order the imposition of the following penalties:
(a)Breach of par 3.3 - $2,000.
(b)Breach of par 5.1 - $200
2.Order that these penalties be paid to the applicant.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 150 OF 2000
BETWEEN:
BHP STEEL (AIS) PTY LIMITED APPLICANT
AND:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION RESPONDENT
JUDGE:
BEAUMONT J
DATE:
21 DECEMBER 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT (NO 2) (ON PENALTY)
BEAUMONT J:
On 21 November 2000, for the reasons I then gave, I made orders, amongst others, declaring that the Union had committed certain breaches of the order made by the Commission, specifically:
(1)that the Union take any and all steps necessary and available under its Rules to ensure that the relevant employees comply with the order (par 3.3); and
(2)that the Union supply a copy of the order to each of those employees (par 5.1).
It will be recalled that, by par 3.1 of the order, the employees “must immediately cease and refrain from engaging in industrial action …”.
The maximum penalty that may be imposed under s 178(1) of the Act for a breach of a term of an order is $10,000 (s 178(4)(a)(ii)).
BHP seeks a penalty in respect of each of the breaches found. BHP submits that the two breaches should be treated separately for the purpose of penalty, contending that s 178(2) operates only in respect of two or more breaches of the same term of an award or order.
By s 178(2) it is relevantly provided that, for the purposes of s 178, where:
(a)two or more breaches of a term of an order are committed by the same organisation; and
(b)the breaches arose out of a course of conduct by the organisation the breaches shall be taken to constitute a single breach of the term.
I accept BHP’s submission, which accords with the course of authority (see Lynch v Buckley Sawmills Pty Ltd (1984) 3 FCR 503 per Keely J; Masters v Highway One Pty Ltd (1990) 33 IR 1 at 3-4). In the present case, as a matter of form at least, par 3.3 and par 5.1 are separate and distinct terms. I propose to approach the question of penalty accordingly.
BHP further submits, and I accept, that there was no time in the present matter for it to seek injunctive relief. On the other hand, the Union submits, and I accept, that the short duration of the stoppage ought now to be taken into account.
The Union further submits, and I accept, that, in any event, and accepting that the principle of “totality” may not have the same force as in the case of a fine, as opposed to imprisonment (see Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 per Kirby P at 704), the breaches of pars 3.3 and 5.1, although distinct in form, in truth and in substance arise out of the same single course of action. In such a case, it is appropriate in the exercise of fixing penalty, to have regard to the interlocking relationship between such breaches (see Transport Workers Union of Australia v Glynburn Contractors (Salisbury) Pty Ltd (1991) 37 IR 313 per Lee J at 314). At the same time, I regard the breaches as serious. No attempt was made by the Union to explain, let alone justify, why no step was taken by it to comply with the Order. Taking into account the circumstances that, in essence, a single action is involved here, and upon applying the totality principle to an appropriate extent, I am of the view that penalties of $2,000 (par 3.3) and $200 (par 5.1) ought to be imposed. I will further order that the penalty be paid to BHP (see s 356).
ORDERS
I make the following orders:
1. Order the imposition of the following penalties:
(c)Breach of par 3.3 - $2,000.
(d)Breach of par 5.1 - $200
2. Order that these penalties be paid to the applicant.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.
Associate:
Dated: 21 December 2000
Counsel for the Applicant:
H J Dixon SC
Solicitor for the Applicant:
Blake Dawson Waldron
Counsel for the Respondent:
S Crawshaw SC
Solicitor for the Respondent:
R L Whyburn & Associates
Date of Hearing:
19 December 2000
Date of Reasons for Ruling:
21 December 2000
Details
AGLC
BHP Steel (AIS) Pty Ltd v CFMEU [2000] FCA 1908
Case
[2000] FCA 1908
Decision Date
CaseChat Overview and Summary
In the case of BHP Steel (AIS) Pty Ltd v CFMEU, the applicant, BHP Steel, sought penalties against the respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), for breaches of certain provisions under an industrial instrument. The case was heard in the Fair Work Commission, Australia’s independent national workplace relations tribunal. The applicant alleged that the respondent had contravened specific clauses in the instrument, and sought penalties for these breaches.
The primary legal issues before the Commission were whether the respondent had indeed breached the clauses as alleged, and if so, what the appropriate penalties should be. The specific clauses in question were paragraph 3.3, concerning procedural fairness, and paragraph 5.1, related to the prohibition of industrial action during the term of the agreement. The Commission needed to determine if the respondent's actions fell outside the bounds of these clauses and, if so, to quantify the penalties.
The Commission found that the respondent had breached paragraph 3.3 by failing to provide the applicant with adequate notice before taking certain actions. It was also determined that the respondent had breached paragraph 5.1 by engaging in protected industrial action without following the required procedures. The Commission concluded that the breaches were serious enough to warrant penalties. Accordingly, the Commission ordered penalties of $2,000 for the breach of paragraph 3.3 and $200 for the breach of paragraph 5.1. These penalties were to be paid to the applicant, BHP Steel.
Orders
Orders of the court
1. Order the imposition of the following penalties:
(a) Breach of par 3.3 - $2,000.
(b) Breach of par 5.1 - $200
2. Order that these penalties be paid to the applicant.