CEPU v Australian Postal Corporation - [2010] FMCA 461

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CEPU v AUSTRALIAN POSTAL CORPORATION

[2010] FMCA 461

INDUSTRIAL LAW – Practice and procedure – union claims against employer for contravention of general protection of members’ entitlements – broad allegations confined to identified members and incidents – small monetary claims – employer’s application for transfer to Federal Court – relevant considerations – application for transfer refused – particulars of allegations required.

Fair Work Act 2009 (Cth), ss.340, 340(1), 341, 342, 343, 344, 345, 362, 545(2)(b)
Federal Magistrates Act 1999 (Cth), ss.3, 39, 39(1), 39(3), 45
Federal Magistrates Court Rules 2001 (Cth), rr.8.02, 8.02(4)
Workplace Relations Act 1996 (Cth)

Australian Competition & Consumer Commission v Australia & New Zealand Banking Group Limited ACN 005 357 522 [2010] FCA 230
King v Office National Limited & Ors [2007] FMCA 1840
Van Efferen v CMA Corporation Limited [2008] FMCA 875
Verge & Anor v Devere Holdings Pty Ltd & Ors (No.4) [2008] FMCA 1421

Applicant:

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

Respondent:

AUSTRALIAN POSTAL CORPORATION

File Number:

SYG 638 of 2010

Judgment of:

Smith FM

Hearing date:

23 June 2010

Delivered at:

Sydney

Delivered on:

23 June 2010

REPRESENTATION

Counsel for the Applicant:

Mr D Dwyer

Counsel for the Respondent:

Ms R Bernasconi

Solicitors for the Respondent:

Blake Dawson

ORDERS

The respondent’s application in a case filed on 2 June 2010 is refused.
The applicant’s claims to be addressed in these proceedings shall be confined to the allegations made in the statement of claim filed on 11 May 2010 of contraventions of section 340 of the Fair Work Act 2009 (Cth) in relation to the events and the employees identified in paragraphs 21 to 69 (the ‘sick leave’ cases) and paragraphs 74 to 99 (the ‘overtime’ cases). Note that this order is not intended to preclude the applicant or any of its members from making other or similar claims in relation to other employees in separate proceedings in this or another Court.
Paragraphs 100 to 106 of the statement of claim are struck out, and the applicant must file an amended application on or before 12 July 2010.
The amended statement of claim must identify in relation to the sick leave cases and the overtime cases particulars of:
(a)the separate contraventions which are alleged,
(b)the person or persons who are alleged to be the subject of each separate contravention,
(c)the particular item and paragraphs in the Table to s.342 which it relies upon as the adverse action taken against that person or those persons for the purposes of s.342, and, whether by reference to earlier paragraphs of the statement of claim or otherwise, the material facts constituting the adverse action,
(d)the particular provisions of legislation, instrument, award or other legal sources which conferred or constituted the ‘workplace rights’ of that person or those persons which it relies upon for the purposes of s.340, and, whether by reference to earlier paragraphs of the statement of claim or otherwise, the material facts…

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: [2010] FMCA 461
Decision Date: 23 June 2010

CaseChat Overview and Summary

The Australian Council of Trade Unions (ACTU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) sought an order against the Australian Postal Corporation (Apost) for contraventions of the Fair Work Act 2009. The Fair Work Ombudsman intervened in the proceeding. Apost filed an application to amend its defence, which the union opposed. The union filed a cross-application to amend its statement of claim, which Apost opposed. The union and the Fair Work Ombudsman filed a joint application for directions. The legal issues before the court included whether the union’s application to amend the statement of claim should be allowed, and whether Apost’s application to amend its defence should be allowed. The court held that the union’s application to amend the statement of claim should be allowed in part, and that Apost’s application to amend its defence should be refused. The union’s application to amend its statement of claim was allowed in part because the union had not provided sufficient detail about the alleged contraventions of the Fair Work Act 2009. The union was required to provide more specific details about the alleged contraventions, the employees involved, the adverse action taken, and the workplace rights relied upon. The court held that Apost’s application to amend its defence should be refused because the union had not provided sufficient detail about the alleged contraventions of the Fair Work Act 2009. The court held that Apost’s application to amend its defence was not necessary because the union’s statement of claim did not provide sufficient detail about the alleged contraventions of the Fair Work Act 2009. The court ordered that the union’s application to amend its statement of claim be allowed in part, and that Apost’s application to amend its defence be refused. The court also ordered that the union and Apost provide further particulars and file affidavits by specified dates. The proceeding was listed for pre-hearing directions and a hearing.

Orders

Orders of the court

The respondent’s application in a case filed on 2 June 2010 is refused.

The applicant’s claims to be addressed in these proceedings shall be confined to the allegations made in the statement of claim filed on 11 May 2010 of contraventions of section 340 of the Fair Work Act 2009 (Cth) in relation to the events and the employees identified in paragraphs 21 to 69 (the ‘sick leave’ cases) and paragraphs 74 to 99 (the ‘overtime’ cases). Note that this order is not intended to preclude the applicant or any of its members from making other or similar claims in relation to other employees in separate proceedings in this or another Court.

Paragraphs 100 to 106 of the statement of claim are struck out, and the applicant must file an amended application on or before 12 July 2010.

The amended statement of claim must identify in relation to the sick leave cases and the overtime cases particulars of:

(a) the separate contraventions which are alleged,

(b) the person or persons who are alleged to be the subject of each separate contravention,

(c) the particular item and paragraphs in the Table to s.342 which it relies upon as the adverse action taken against that person or those persons for the purposes of s.342, and, whether by reference to earlier paragraphs of the statement of claim or otherwise, the material facts constituting the adverse action,

(d) the particular provisions of legislation, instrument, award or other legal sources which conferred or constituted the ‘workplace rights’ of that person or those persons which it relies upon for the purposes of s.340, and, whether by reference to earlier paragraphs of the statement of claim or otherwise, the material facts by which those rights were acquired or enjoyed,

(e) which of the paragraphs and subparagraphs of s.340(1) are relied upon in relation to that person or those persons, and, whether by reference to earlier paragraphs of the statement of claim or otherwise, the material facts by the workplace rights were enjoyed, exercised or proposed to be exercised,

(f) the particular employees and the nature and amount of his or her entitlements for which compensation is sought under s.545(2)(b).

The respondent must make any request for further particulars on or before 16 July 2010.

The applicant must respond to that request on or before 23 July 2010.

The respondent must file and serve a defence on or before 2 August 2010.

The applicant must file and serve all affidavits relied upon on or before 9 August 2010.

The respondent must file and serve all affidavits relied upon on or before 13 September 2010.

10.

The applicant must file and serve all affidavits in reply on or before 27 September 2010.

11.

If any party is in default in relation to the above timetable for more than 4 working days, the other party must immediately request the Associate to appoint a directions hearing. Alternatively, the parties may forward to the Associate consent orders signed by all parties, which varies the timetable except in relation to listings.

12.

The proceeding is listed for pre‑hearing directions on 14 October 2010 at 9.30am. The parties must forward by email to the Associate on the preceding day short minutes of any proposed directions preparatory for a final hearing.

13.

The application is listed for hearing on 26 October 2010 at 10.15am (3 days allowed).

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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