COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENGINEERING, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Second Respondent:
KEVIN HARKINS
File Number:
LNG 24 of 2007
Judgment of:
Lucev FM
Hearing date:
4 September 2007
Date of Last Submission:
4 September 2007
Delivered at:
Perth (by telephone link to Melbourne)
Delivered on:
14 September 2007
REPRESENTATION
Counsel for the Applicant:
Mr P M O’Grady
Solicitors for the Applicant:
Australian Government Solicitor
Counsel for the Respondent:
Mr K Farouque
Solicitors for the Respondent:
Maurice Blackburn Cashman
DECLARATION AND ORDERS
THE COURT DECLARES THAT:
The First Respondent contravened s.38 of the Building and Construction Industry Improvement Act 2005 (Cth) (“BCII Act”) by engaging in unlawful industrial action constituted by a 24 hour strike of employees in the electrical contracting industry in Tasmania on 14 December 2005.
The Second Respondent contravened s.38 of the BCII Act by engaging in unlawful industrial action constituted by a 24 hour strike of employees in the electrical contracting industry in Tasmania on 14 December 2005.
AND THE COURT ORDERS THAT:
A penalty of…
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
AGLC
Carr v CEPU & Anor [2007] FMCA 1526
Case
[2007] FMCA 1526
Decision Date
CaseChat Overview and Summary
In the Federal Magistrates Court of Australia, the case of Carr v CEPU & Anor was heard and decided. The applicant, Dennis Carr, sought a declaration and penalties against the Communications, Electrical, Electronic, Engineering, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Mr. Kevin Harkins for contraventions of section 38 of the Building and Construction Industry Improvement Act 2005 (Cth). The respondents admitted to engaging in unlawful industrial action by orchestrating a 24-hour strike of electrical contractors in Tasmania on December 14, 2005.
The primary issue before the court was whether the agreed penalties of $11,000 for the CEPU and $8,800 for Mr. Harkins were appropriate. The court considered the principles concerning agreed penalties and the relevant factors to assess the appropriateness of the penalty. These factors included the nature and effect of the unlawful industrial action, the deliberateness and period of the contraventions, the conduct of senior management, the organisational culture of the contravener, the relevant record of contraventions, co-operation with the Commissioner, contrition, financial position, deterrence, statutory purposes, and the totality principle.
After considering all relevant factors, the court found that the agreed penalties were appropriate and sufficient both for general and specific deterrence. The penalties reflected the seriousness of the contraventions and the relative culpability of the parties. The court also noted that the statutory purposes of the BCII Act, such as improving the bargaining framework and promoting respect for the rule of law, were undermined by the conduct of the CEPU and Mr. Harkins. Finally, the court was satisfied that the total penalty to be imposed on the CEPU and Mr. Harkins was appropriate under the totality principle.
The court declared that the CEPU and Mr. Harkins had contravened section 38 of the BCII Act and ordered the imposition of penalties of $11,000 on the CEPU and $8,800 on Mr. Harkins. The application for disqualification was dismissed, and each party was ordered to bear their own costs.