CFMEU v Quality 1 Security Services Pty Ltd - [2009] FMCA 1076

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CFMEU v QUALITY 1 SECURITY SERVICES PTY LTD

[2009] FMCA 1076

INDUSTRIAL LAW – Breach of provisions of Workplace Relations Act 1996 relating to freedom of association – where breaches admitted and parties put forward agreed statement of facts and joint submissions on penalty – matters to be taken into account by the court.

Workplace Relations Act 1996, ss.778, 792, 793, 807
Fair Work (Transitional Provisions) Act 2009

Davids Distribution v TWU 91 IR 198
Australian Ophthalmic Supplies v McAlary Smith (2008) 165 FCR 560
CFMEU v Coal & Allied Operations (No 2) (1999) 94 IR 231
Seven Network Operations Pty Ltd v CEPU [2001] FCA 672
Alfred v Walter Construction Group Limited [2005] FCA 497
Veen v R (No 2) (1988) 164 CLR 465
Ponzio v B&P Caelli Constructions Pty Ltd [2007] FCAFC 65

Applicant:

CONSTRUCTION FORESTRY MINING AND ENERGY UNION

Respondent:

QUALITY 1 SECURITY SERVICES PTY LTD

File Number:

SYG 1163 of 2009

Judgment of:

Raphael FM

Hearing date:

28 October 2009

Date of Last Submission:

28 October 2009

Delivered at:

Sydney

Delivered on:

2 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr I Latham

Solicitors for the Applicant:

CFMEU

Counsel for the Respondent:

Mr R de Meyrick

Solicitors for the Respondent:

A J Gallagher

ORDERS

The Respondent pay a penalty pursuant to s.807 of the Workplace Relations Act 1996 for breach of s.792 of the Act on 15 October 2008 in the sum of $8,000.00.
The said penalty of $8,000.00 be paid to the Applicant Union pursuant to s.807(4) of the Act within twenty-eight days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1163 of 2009

CONSTRUCTION FORESTRY MINING AND ENERGY UNION

Applicant

And

QUALITY 1 SECURITY SERVICES PTY LTD

Respondent

REASONS FOR JUDGMENT

On 14 May 2009 the Construction Forestry Mining and Energy Union (the “Union”) filed an application in this court seeking declarations that the respondent had breached s.792 of the Workplace Relations Act 1996 (the “Act”) when an officer of the respondent threatened to dismiss employees for the reason for the reason or, for reasons which included, that the employees had made an enquiry or proposed to make an enquiry with the CFMEU about their wages. The Union also sought a declaration that on 17 October and 21 October the respondent had breached s.792 of the Act when it dismissed employees for the reason, or for reasons which included that the employees had make an enquiry or proposed to make an enquiry with the CFMEU about their wages. The Union also sought a declaration that on 31 October 2008 the respondent breached s.792 of the Act when it caused a notice to be posted which indicated that any employee who attended a meeting with the CFMEU would be dismissed. The Union sought orders that a civil penalty be imposed upon the respondent in respect of the contraventions referred to, that those penalties be paid to the Union and that the respondent pay the Union’s costs. The matter proceeded…

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: [2009] FMCA 1076
Decision Date: 2 November 2009

CaseChat Overview and Summary

The matter involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) as the Applicant and Quality 1 Security Services Pty Ltd as the Respondent. The dispute arose from an alleged breach of section 792 of the Workplace Relations Act 1996 by the Respondent on 15 October 2008. The Applicant sought a penalty pursuant to section 807 of the Act for this breach.

The primary legal issue before the court was whether the Respondent had indeed breached section 792 of the Act, and if so, what the appropriate penalty should be under section 807. The court had to consider the evidence presented regarding the Respondent's actions on the specified date and assess whether these actions constituted a breach of the statutory provisions. Furthermore, the court needed to determine the appropriate amount of penalty to be imposed under section 807.

The court found that the Respondent had indeed breached section 792 of the Act, as evidenced by the conduct on 15 October 2008. The court held that the breach warranted a penalty under section 807 of the Act. After considering the nature of the breach and the statutory provisions, the court ordered the Respondent to pay a penalty of $8,000.00 to the Applicant Union within twenty-eight days. The penalty was to be paid pursuant to section 807(4) of the Act.

Orders

Orders of the court

The Respondent pay a penalty pursuant to s.807 of the Workplace Relations Act 1996 for breach of s.792 of the Act on 15 October 2008 in the sum of $8,000.00.

The said penalty of $8,000.00 be paid to the Applicant Union pursuant to s.807(4) of the Act within twenty-eight days.

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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