CEPU v Telstra Corporation - [2011] FMCA 307

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CEPU v TELSTRA CORPORATION

[2011] FMCA 307

INDUSTRIAL LAW – Right of entry – whether “premises” includes individual workstations – summary dismissal – tests for.

Fair Work Act 2009, ss.12, 487, 501, 502, 518 (1)(a), 793; pts.3, 4
Federal Court of Australia Act 1976 (Cth), s.31A (2)(b)
Federal Magistrates Act 1999 (Cth), s.17A
Federal Magistrates Court Rules 2001, r.13.10

Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499

Barnett v Territory Insurance Office [2011] FCA 155
Curran v Thomas Borthwick & Sons Ltd (1990) 26 FCR 241
Fair Work Ombudsman v Maclean Bay Pty Ltd [2010] FCA 1378
Keynes and Others v Rural Directions Pty Ltd and Others (No.2) (2009) 72 ACSR 264
Portuguese Cultural & Welfare Centre Inc v AMCA [2011] FMCA 144

PZ Cussons (International) Ltd v Rosa Dora Imports Pty Ltd [2007] 74 IPR 372

Spencer v The Commonwealth [2010] 241 CLR 118

Applicant:

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

Respondent:

TELSTRA CORPORATION

File Number:

MLG 736 of 2010

Judgment of:

F. Turner FM

Hearing date:

4 April 2011

Date of Last Submission:

4 April 2011

Delivered at:

Melbourne

Delivered on:

5 May 2011

REPRESENTATION

Counsel for the Applicant:

Mr White

Counsel for the Respondent:

Mr Snaden

Solicitors for the Respondent:

Blake Dawson

ORDERS

The Application in a Case filed on 7 February 2011 seeking summary dismissal of the Application filed 18 May 2010 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 736 of 2010

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

Applicant

And

TELSTRA CORPORATION

Respondent

REASONS FOR JUDGMENT

This matter involves an application by the Telstra Corporation (“Telstra”) for summary dismissal of an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (the “CEPU”).
By application filed on 18 May 2010 and Further Amended Statement of Claim filed on 19 January 2011, the CEPU alleges breaches of the Fair Work Act 2009 (the “Act”) relating to alleged denial of right of entry, and seeks the imposition of penalties on Telstra.
At the hearing on 4 April 2011 Mr White appeared for the CEPU and Mr Snaden for Telstra.
The CEPU alleges that Telstra and its managers, having been given appropriate notice of entry by permit holders from the CEPU:
·Refused entry to Telstra premises, and/or
·Unduly delayed entry to Telstra premises; and/or
·Intentionally hindered or obstructed permit holders when attempting to exercise their rights.
That action is said to have been in breach of sections 501 and 502 of the Act which provide as follows:
501   Person must not refuse or delay entry
A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with this Part.
Note:     This section is a civil remedy provision (see Part 4‑1).
502   Person must not hinder or obstruct permit holder
(1)A person must not intentionally hinder or obstruct…

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 CEPU v Telstra Corporation

Details

AGLC: CEPU v Telstra Corporation [2011] FMCA 307
Case: [2011] FMCA 307
Decision Date: 5 May 2011

CaseChat Overview and Summary

The matter before the court involved the Communications, Electrical and Plumbing Union of Australia (CEPU) and Telstra Corporation. The CEPU filed an application on 18 May 2010, which was subsequently subject to a summary dismissal application by Telstra on 7 February 2011. The court was tasked with determining whether the initial application could be summarily dismissed.

The primary legal issue before the court was whether the application filed by the CEPU was suitable for summary dismissal as sought by Telstra. The court needed to assess the merits of the application and whether there were any substantive grounds upon which the application could proceed. The court considered whether the application disclosed a reasonable cause of action and whether there were any evidential or procedural grounds warranting dismissal.

The court found that the application did not warrant summary dismissal. The court determined that the application disclosed a reasonable cause of action and that there were no evidential or procedural grounds upon which the application could be summarily dismissed. The court held that the application should proceed to a full hearing to allow for proper consideration of the substantive issues. The dismissal of the summary dismissal application meant that the original application would continue to be heard on its merits.

Orders

Orders of the court

The Application in a Case filed on 7 February 2011 seeking summary dismissal of the Application filed 18 May 2010 is dismissed.

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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