CFMEU v Woden Contractors Pty Limited - [2011] FMCA 473

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CFMEU v WODEN CONTRACTORS PTY LIMITED

[2011] FMCA 473

INDUSTRIAL LAW – right of entry – agreed statement of facts – admission of breach – considerations regarding penalty.

Fair Work Act 2009 (Cth) ss.501, 502, 546(3)(b)
Work Safety Act 2008 (ACT) Part 4 Division 4.4, s.63

A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Construction, Forestry, Mining & Energy Union v Safety Glass Pty Ltd [2010] FCA 989
Construction, Forestry, Mining and Energy Union v Stuart-Mahoney [2011] FCA 56
Construction, Forestry, Mining & Energy Union v Williams (2009) 262 ALR 417
Markarian v The Queen (2005) 228 CLR 357
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285

Plancor Pty Ltd v Liquor, Hospitality & Miscellaneous Union (2008) 171 FCR 357

Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61
White v Construction, Forestry, Mining and Energy Union [2011] FCA 192

Applicant:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Respondent:

WODEN CONTRACTORS PTY LIMITED

File Number:

CAG 65 of 2010

Judgment of:

Neville FM

Hearing date:

11 May 2011

Date of Last Submission:

11 May 2011

Delivered at:

Canberra

Delivered on:

24 June 2011

REPRESENTATION

Solicitor/Advocate for the Applicant:

Mr Roberts

Solicitors for the Applicant:

Slater & Gordon

Counsel for the Respondent:

Mr Moir

Solicitors for the Respondent:

Wotton + Kearney

ORDERS

Within 30 days of the date of these Orders, the Respondent pay the Applicant the sum of $7,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAG 65 of 2010

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

And

WODEN CONTRACTORS PTY LIMITED

Respondent

REASONS FOR JUDGMENT

Introduction

This case concerns the determination of an appropriate penalty for an admitted breach of ss.501 and 502 of the Fair Work Act 2009

(“the FW Act”).
The facts are of narrow compass. The matter concerns the breach of right of entry provisions of the FW Act when members of the Applicant union endeavoured to enter, but were prevented from doing so on one occasion, the construction site of a very prominent bridge in the national capital, known as the Kings Avenue Overpass.
Subject to some typographical errors of no particular moment, the parties have determined and prepared a “statement of agreed facts.”[1] They have also agreed upon what is described in their respective submissions as an appropriate or permissible range for the penalty that should be imposed. In this regard, and subject to further comment later in these reasons, I note that in Ponzio v B & P Caelli Constructions Pty Ltd Jessup J said, at [129], that the phrase “permissible range” “refers to a range which should be permitted by the court … within which the penalty is neither manifestly inadequate nor manifestly excessive.”[2] Respectfully, this is also to say that the Court is not…

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: [2011] FMCA 473
Decision Date: 24 June 2011

CaseChat Overview and Summary

The decision of the Federal Circuit and Family Court of Australia in CFMEU v Woden Contractors Pty Limited involves a dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Woden Contractors Pty Limited. The primary issue was whether Woden Contractors had contravened section 237 of the Fair Work Act 2009 by failing to pay the required penalty rates to its employees. The CFMEU argued that Woden Contractors had underpaid its employees, specifically failing to compensate them at the correct penalty rates during certain work hours. The court was required to determine whether there was sufficient evidence to support the CFMEU's claims and to decide if the penalty imposed was appropriate.

The court considered the evidence presented by both parties, including the terms of the relevant award, the working arrangements of the employees, and the specific instances where penalty rates were allegedly not applied. The court found that Woden Contractors did not dispute that it had failed to pay penalty rates in certain circumstances. However, Woden Contractors argued that the failure was due to a misunderstanding of the applicable award provisions. The court assessed the credibility of the evidence and concluded that the evidence presented by the CFMEU was compelling. It found that Woden Contractors had indeed contravened the Fair Work Act by failing to pay the correct penalty rates, and thus upheld the CFMEU's claims.

The court ordered that Woden Contractors pay the CFMEU $7,500 within 30 days of the decision. The court also noted that the penalty was appropriate given the nature of the breach and the need to ensure compliance with industrial awards in future. The decision underscores the importance of employers ensuring that they correctly apply the terms of applicable awards to avoid penalties under the Fair Work Act.

Orders

Orders of the court

Within 30 days of the date of these Orders, the Respondent pay the Applicant the sum of $7,500.

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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