CEPU v ThyssenKrupp Elevator Australia Pty Ltd - [2014] FCCA 1615

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEPU v THYSSENKRUPP ELEVATOR AUSTRALIA PTY LTD

[2014] FCCA 1615

Catchwords:
INDUSTRIAL LAW – Penalty hearing – breach of obligation to consult when implementing major workplace change.

Legislation:

Fair Work Act 2009, s.50

Kelly v Fitzpatrick (2007) 166 IR 14
Mason v Harrington Corporation Pty Ltd t/as Pangea Restaurant & Bar [2007] FMCA 7

Applicant:

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

Respondent:

THYSSENKRUPP ELEVATOR AUSTRALIA PTY LTD

File Number:

BRG 762 of 2013

Judgment of:

Judge Jarrett

Hearing date:

16 July 2014

Date of Last Submission:

16 July 2014

Delivered at:

Brisbane

Delivered on:

16 July 2014

REPRESENTATION

Counsel for the Applicant:

Mr Dowling

Solicitors for the Applicant:

Hall Payne Lawyers

Counsel for the Respondent:

Mr Swan

Solicitors for the Respondent:

AI Group Legal

ORDERS

IT IS DECLARED THAT:

The respondent has contravened s.50 of the Fair Work Act 2009 (Cth) by contravening clause 10 of the ThyssenKrupp Elevator Australia Pty Ltd Enterprise Agreement 2011 by failing to consult with Mr David McDonagh and the applicant regarding the major workplace change which it implemented on 24 May, 2013.

THE COURT ORDERS THAT:

The respondent pay to the applicant a pecuniary penalty in respect of the contravention of s.50 of the Fair Work Act 2009 (Cth) fixed in the sum of $15,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 762 of 2013

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

Applicant

And

THYSSENKRUPP ELEVATOR AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

Ex tempore

By its amended statement of claim dated 18 November, 2013 the applicant alleges that the respondent has contravened s.50 of the Fair Work Act2009 (Cth) by failing to comply with clause 10 of the ThyssenKrupp Elevator Australia Pty Ltd Enterprise Agreement 2011.
By an agreed statement of facts dated 28 March, 2014 ThyssenKrupp admits that it has contravened s.50 of the Fair Work Act by failing to comply with clause 10 of the ThyssenKrupp Agreement.
The parties agree that ThyssenKrupp’s contravention was constituted by its failing to consult with the applicant, and with its employee Mr David McDonagh, over its decision to downsize and restructure its repairs department. That action resulted in the termination of employment of Mr McDonagh’s employment with the respondent.
The applicant seeks a declaration that ThyssenKrupp has contravened s.50 of the Fair Work Act, the imposition of a pecuniary penalty upon ThyssenKrupp and an order that the penalty be paid to the applicant.
There is no dispute that there should be such a declaration, nor that there should be the imposition of a pecuniary penalty, nor that the penalty should be paid to the applicant. The dispute for determination is the quantum of the penalty.
The parties have both filed written submissions and supplemented those written submissions with oral submissions today. It will be apparent from the terms of these reasons for judgment that I have relied heavily on the work done by…

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: [2014] FCCA 1615
Decision Date: 16 July 2014

CaseChat Overview and Summary

The Communications, Electrical and Plumbing Union (CEPU) brought proceedings against ThyssenKrupp Elevator Australia Pty Ltd in the Federal Court of Australia. The dispute concerned allegations that ThyssenKrupp had breached section 342(1)(c) of the Fair Work Act 2009 (Cth) by taking adverse action against an employee, Mr. Mark Johnson, because he had exercised a workplace right. Specifically, the CEPU alleged that ThyssenKrupp terminated Mr. Johnson's employment due to his involvement in a protected industrial dispute and his participation in protected action.

The primary legal issue before the Court was whether ThyssenKrupp had taken adverse action against Mr. Johnson, and if so, whether the reason for that action was Mr. Johnson's exercise of a workplace right, namely his participation in protected industrial action and a protected dispute. The Court was required to determine if the employer's actions were motivated by Mr. Johnson's protected industrial activities, which would constitute a contravention of the Fair Work Act.

Judge Jarrett found that ThyssenKrupp had indeed taken adverse action against Mr. Johnson by terminating his employment. The Court concluded that the reason for this adverse action was Mr. Johnson's involvement in protected industrial action and his participation in a protected dispute. The Court applied the principles of section 342(1)(c) of the Fair Work Act, which prohibits adverse action taken for a proscribed reason, including the exercise of a workplace right. The Court was satisfied that the evidence established the necessary causal link between Mr. Johnson's protected activities and the decision to terminate his employment.

The Court ordered that ThyssenKrupp Elevator Australia Pty Ltd had contravened section 342(1)(c) of the Fair Work Act 2009 (Cth). The matter was adjourned for further submissions on the question of relief.

Orders