Chelvarajah v Global Protection Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Chelvarajah v Global Protection Pty Ltd [2004] FCA 1661

INDUSTRIAL LAW – employment – termination – order of Australian Industrial Relations Commission requiring appointment of former employee to equivalent position and payment of remuneration lost – employer no longer carrying on business or employing anyone in position of that kind – whether mandatory injunction should be granted to enforce term of order requiring appointment to position – whether penalty should be imposed for breach of term of order requiring appointment to position – whether penalty should be imposed for breach of term of order requiring payment of remuneration lost – whether former employee entitled to sue for money due under term of order requiring payment of remuneration lost

CONTEMPT OF COURT – penalty – fine – discretion to impose – interlocutory mandatory injunction requiring appointment of person to a position – respondent no longer carrying on business or employing anyone in position of that kind – whether fine should be imposed – whether interlocutory injunction should be discharged

WORDS AND PHRASES – ‘employee’ – ‘employer’

Acts Interpretation Act 1901 (Cth) ss 15AA, 33(2A),
Conciliation and Arbitration Act 1904 (Cth) (repealed) s 119
Crimes Act 1914 (Cth)
Evidence Act 1995 (Cth) ss 59(1), 62, 64(2), 87(1)(a), 87(1)(b)
Federal Court of Australia Act 1976 (Cth) ss 51A, 52
Industrial Relations Act 1988 (Cth) s 178(1)
Penalty Interest Rates Act 1983 (Vic)
Service and Execution of Process Act 1992 (Cth) s 9
Statute Law (Miscellaneous Provisions) Act 1987 (Cth)
Workplace Relations Act 1996 (Cth) ss 4(1), 170CE(1)(a), 170CF(1), 170CFA, 170CH, 170CH(4)(b), 170CH(6), 170JC, 170JC(1), 170JC(3), 170JC(3)(a), 170CH(3), 170CH(3)(a), 170CH(3)(b), 170CH(4), 178, 178(1), 178(4)(a)(ii), 178(5)(d), 178(6), 179, 179(1), 179(3), 179A, 356(b), 347, 412(1)(a), 412(1)(b), 412(1)(e)
Workplace Relations Amendment (Codifying Contempt Offences) Act 2004 (Cth) s 3(1)

Federal Court Rules O 35 r 8

Ramsey Butchering Services Pty Ltd v Blackadder [2002] FCAFC 20 (2002) 127 FCR distinguished
Attorney-General v Colney Hatch Lunatic Asylum (1868) LR 4 Ch App 146 followed
Anthony Smith and Associates Pty Ltd v Sinclair (1996) 67 IR 240 distinguished
Parkinson v Grazcos Co-Operative Ltd (1958) 1 FLR 90 followed
Municipal Officers Association of Australia v Shire of Wanneroo (Federal Court of Australia, Toohey J, 19 June 1985, unreported) followed
Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 followed
Witham v Holloway (1995) 183 CLR 525 followed
Re Bramblevale Ltd [1970] Ch 128 followed

ANTON CHELVARAJAH AND AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS’ UNION v GLOBAL PROTECTION PTY LTD (ACN 078 956 519) TRADING AS KIRWAN SECURITY SERVICES
V 857 of 2003

GRAY J
21 DECEMBER 2004
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 857 of 2003

BETWEEN:

ANTON CHELVARAJAH
FIRST APPLICANT

AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS' UNION
SECOND APPLICANT

AND:

GLOBAL PROTECTION PTY LTD
ACN 078 956 519
Trading as Kirwan Security Services
RESPONDENT

JUDGE:

GRAY J

DATE OF ORDER:

21 DECEMBER 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.A penalty in…

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Details
Case
[2004] FCA 1661
Decision Date

CaseChat Overview and Summary

Chelvarajah v Global Protection Pty Ltd is a case where Anton Chelvarajah, a former employee of Kirwan Security Services, sought various remedies against Global Protection Pty Ltd, which had taken over the business of Kirwan Security Services. Chelvarajah alleged wrongful termination and sought enforcement of an order made by the Australian Industrial Relations Commission, penalties for breach of the order, compensation for lost wages, and fines for contempt of court. The court was tasked with determining whether to grant a final injunction, impose penalties, order compensation, and fine the respondent for contempt. The case hinged on the enforceability of the Commission's order and the respondent's compliance with it.

The court addressed several legal issues, including the enforceability of the Commission's order, the imposition of penalties for non-compliance, the calculation and payment of lost wages, and the imposition of fines for contempt. The court examined the provisions of the Workplace Relations Act 1996 (WR Act) and considered whether the Commission's order should be treated as an award. It also assessed the respondent's compliance with the order and the implications of the employer's change in business registration. The court noted that Chelvarajah's failure to obtain evidence of the change in business registration before commencing the proceeding led to additional costs.

The court concluded that while Chelvarajah was entitled to payment of arrears pursuant to the third term of the Commission's order, the application for a permanent injunction and penalties for other breaches of the order should be dismissed. The court also dismissed the application for punishment for contempt of court, noting that the case fell within the scope of section 347 of the WR Act. The court ordered Global Protection Pty Ltd to pay a penalty of $2000 and compensate Chelvarajah with $12,836.16, including interest. The interlocutory injunction was discharged, and no order for costs was made.

In summary, the court's decision recognised Chelvarajah's entitlement to lost wages but did not enforce the broader terms of the Commission's order. The court dismissed the applications for penalties, contempt fines, and a permanent injunction, leaving the Commission's order partially enforceable. The court's decision highlighted the importance of obtaining accurate business registration information to avoid unnecessary litigation costs.

Orders

Orders of the court

1. A penalty in the sum of $2000 be imposed on the respondent for breach of a term of

the order made by the Australian Industrial Relations Commission on 13 August 2003.

2. The respondent pay the penalty to the second applicant, the Australian Liquor,

Hospitality and Miscellaneous Workers’ Union.

3. The respondent pay to the first applicant, Anton Chelvarajah, the sum of $12 836.16, including $1699.16 interest to the date of judgment.

4. The application otherwise be dismissed.

5. The motions the subject of the notice of motion filed on 16 December 2003 be

dismissed.

6. The interlocutory injunction in par 2 of the order made by Merkel J on 22 September

2003, and amended on 26 September 2003, be discharged.

7. There be no order as to costs.

Background

Background to the litigation

In essence, four significant questions are raised:· Should the Court grant a final injunction, pursuant to s 170JC(3) of the WR Act, to enforce the order of the Commission?· Should the Court impose a penalty on the respondent, pursuant to s 178(1) of the WR Act, for breach of the terms of the Commission’s order?· Should the Court order the respondent to pay any, and if so what, amount of money lost by Mr Chelvarajah as a result of the termination?· Should the Court impose a fine, and if so of what amount, on the respondent for contempt of court in failing to comply with the interlocutory injunction?The facts Mr Chelvarajah began his employment with Kirwan Security Services as a casual security guard in October 2000. He was given casual work in Dandenong and Bayswater. He was then offered a full-time position at the Bayswater location on a roster, working rotating afternoon and night shifts. In early November 2002, Mr Chelvarajah was told that he was to be transferred to a location in Altona. This was a considerable distance from his home at Narre Warren, and he was concerned about the distance he would have to travel to and from work. He was having problems with his eyesight. Mr Chelvarajah was sent to Dandenong for a few days and then to Chelsea Heights for a few days. He then spent some time at a location in Port Melbourne. On 9 January 2003, he underwent eye surgery. On 14 January 2003, he was offered a position at West Footscray. He undertook a trial trip from his home to West Footscray by car and train and on foot. The trip took two and a half hours. As a consequence, Mr Chelvarajah rejected the position. He was then told that he had abandoned his employment and would receive a letter of termination. The letter arrived on 16 January 2003. In his application to the Commission, Mr Chelvarajah gave the name of his employer as ‘Kirwan Security’. An appearance was entered in the Commission proceeding. This gave the name of the employer as ‘Kirwan Security Service’. It indicated that the proprietor of the business was a company, and gave the company’s identifying number as ACN 078 956 519. That is the identifying number of the respondent, Global Protection Pty Ltd. The contact person was given as Barry Rumpf. The notice of appearance contained an admission that the named employer was the employer of the applicant at the time of termination. In his reasons for decision, published on 13 August 2003, Commissioner Mansfield found that Mr Chelvarajah was employed as a security guard by ‘Kirwan Security Services.’ The Commissioner recorded that Kirwan Security Services was not represented at the hearing, quoting from a letter to the Commission, dated 31 July 2003:‘I confirm what was conveyed to you this morning in conversation that this company Finished in Business [sic] on 30th June, 2003 and it intends to take no further part in these proceedings.’ In his summary of the evidence, the Commissioner said:‘There is conflicting material before the Commission as to the legal status of the employer. Evidence from the applicant suggests that it is still an operating legal entity, material from the employer states that the company has been or is in the process of being liquidated.’

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J
For these reasons, the application by notice of motion for punishment for contempt of court must be dismissed. The proceeding having reached its conclusion, and the decision having been made not to grant a permanent injunction, the appropriate course is to discharge the interlocutory injunction. Conclusion The applicants have therefore succeeded only on the issue of the payment of arrears pursuant to the third term of the Commission’s order, between 14 January 2003 and 10 July 2003. That success justifies an order for payment to Mr Chelvarajah of the sum of $12 836.16, including $1699.16 by way of interest from 13 August 2003 to the date of judgment. It also justifies an order that a penalty be imposed in the sum of $2000, and that the penalty be paid to the second applicant. The applicants have failed to establish their case in respect of any penalty for the respondent’s failure to comply with the first, second and fourth terms of the Commission’s order. The applicants have also failed to establish their case for a permanent injunction, enforcing those terms of the Commission’s order. Apart from the aspects on which the applicants have succeeded, the application must be dismissed. Similarly, the application by notice of motion to punish the respondent for contempt of court in failing to comply with the interlocutory injunction must be dismissed. No issue of an order for costs arises, because the case falls squarely within s 347 of the WR Act. These orders leave the matter involving the applicants and the respondent in an unsatisfactory state. The Commission’s order remains on foot. Although, for the most part, not enforced by this Court, the Commission’s order will continue to impose obligations on the respondent. In part, the difficulties are of the applicants’ creation. It would have been easy for them to obtain evidence of the change of registration of the business name ‘Kirwan Security Services’ before commencing this proceeding, or at an early stage of it, when pursuing the interlocutory injunction. Their failure to do so has led to substantial expenditure in costs, which might have been avoided. It should be noted that the solicitor on the record by the time of the hearing was not the solicitor involved in the early stages of the matter. To some extent, blame must also attach to the respondent, which could easily have participated in the proceeding and informed the Court of the true situation at an early stage. The Court has no power to set aside the Commission’s order. Regrettably, that order must subsist.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Regarding the maximum penalty as $10 000, therefore, and taking into account the factors to which I have referred, it seems to me that the appropriate penalty to impose on the respondent for its non-payment of money to Mr Chelvarajah, pursuant to the third term of the Commission’s order, is $2000. Pursuant to s 356(b) of the WR Act, the order should be that the penalty be paid to the second applicant, which has no doubt financed the proceeding for the benefit of Mr Chelvarajah, and which has an interest in securing the observance of the terms of orders of the Commission in respect of its members. See s 178(5)(d) of the WR Act, which gives an organisation, any of whose members are affected by the breach, standing to sue for a penalty.Payment of lost remuneration In respect of his claim for money, pursuant to the third term of the Commission’s order, Mr Chelvarajah relied on two provisions of the WR Act. The first is s 178(6), which provides:‘Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount that the employer was required to pay under an award, order or agreement, the court may order the employer to pay to the employee the amount of the underpayment.’ The second provision was s 179(1), which provides:‘Where an employer is required by an award, order or certified agreement to pay an amount to an employee, the employee may, not later than 6 years after the employer was required to make the payment to the employee under the award, order or agreement, sue for the amount of the payment in the Court or in any court of competent jurisdiction.’ Both of these provisions are found in Pt VIII of the WR Act. They are therefore brought into operation in relation to orders made pursuant to the powers given in Pt VIA by s 170JC(1), on the basis that they have the same effect in relation to orders under Pt VIA as they do in relation to awards. The two provisions, however, have fundamental differences. Section 178(6) confers on the Court a power, using the word ‘may’. Section 178(6) has a legislative lineage similar to that of s 178(1) (as to which see [41] above), so that the power is to be construed as probably discretionary. If so, its exercise would turn upon the discretionary considerations that I have already seen as relevant to the exercise of the powers to grant a permanent injunction and to impose a penalty. In addition, before the Court is empowered by s 178(6) to make an order for payment, it must appear that ‘an employee of the employer has not been paid an amount’. On the face of s 178(6), a question might arise as to whether a subsisting employment relationship is required before the necessary order can be made. Section 179(1) of the WR Act is not a discretionary provision. It provides an entitlement to sue for the amount which the employer is required to pay. Pursuant to s 412(1)(b) of the WR Act, the Court has jurisdiction with respect to matters arising under the WR Act in relation to which actions may be brought in it under the WR Act. There can be no doubt that the Court has jurisdiction to entertain a suit under s 179(1). Nor can there be any doubt that the third term of the Commission’s order of 13 August 2003 creates an obligation to pay. The amount is not fixed by the order, but it can be calculated. The combination of s 179(1) and s 170JC(1) requires that the Commission’s order be treated as if it were an award.