Claringbold, Walter Alfred v Cefala Nominees Pty Ltd
[1983] FCA 113
•09 JUNE 1983
And: CEFALA NOMINEES PTY. LTD.
No. V. 14 of 1983
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.
MELBOURNE
#DATE 9:6:1983
1. In respect of the two breaches of clause 31(a) of the award alleged in paragraphs 1 and 2 of the application filed herein on 3 May 1983, which breaches, in accordance with the provisions of s. 119(1A) of the Act, are treated as constituting a single breach of that term of the award, a penalty of $400-00 is imposed. The amount of the penalty, $400-00 shall be paid by Cefala Nominees Pty. Ltd. to the Clothing and Allied Trades Union of Australia.2. In respect of the breach of clause 31(b) of the award alleged in paragraph 3 of the application filed herein on 3 May 1983, a penalty of $400-00 is imposed. The amount of the penalty, $400-00, shall be paid by Cefala Nominees Pty. Ltd. to the Clothing and Allied Trades Union of Australia.
3. In respect of the two breaches of clause 31(a) of the award alleged in paragraphs 4 and 5 of the application filed herein on 3 May 1983, which breaches, in accordance with the provisions of s. 119(1A) of the Act, are treated as constituting a single breach of that term of the award, a penalty of $600-00 is imposed. The amount of the penalty, $600-00, shall be paid by Cefala Nominees Pty. Ltd. to the Clothing and Allied Trades Union of Australia.
4. In respect of the two breaches of clause 31(b) of the award alleged in paragraphs 6 and 7 of the application filed herein on 3 May 1983, which breaches, in accordance with the provisions of s. 119(1A) of the Act, are treated as constituting a single breach of that term of the award, a penalty of $600-00, shall be paid by Cefala Nominees Pty. Ltd. to the Clothing and Allied Trades Union of Australia.
This is an application by Walter Alfred Claringbold for penalties to be imposed under s. 119 of the Conciliation and Arbitration Act 1904 (the Act) on the respondent for various breaches of the Clothing Trades Award 1964 (the award), alleged to have occurred in June 1982. The evidence showed that at all material times :-
(a) the respondent was incorporated as a proprietary company;
(b) the respondent was bound by the terms of the award, by virtue of being a member of The Victorian Chamber of Manufactures, an organization of employers under the Act which was named as an organization bound by the award;
(c) The Clothing and Allied Trades Union of Australia (the organization), was an organization of employees registered under the Act, which was affected by the alleged breaches of the award;
(d) the applicant was Secretary of the Victorian Branch of the organization and as such was an officer who was authorised under the rules of the organization to sue on its behalf;
(e) on 2 June, 1982 and 29 June, 1982, Lidia Jerkovic and Katherine Sdrinis, each of whom was then duly authorised by the Industrial Registrar pursuant to clause 31 of the award, visited the factory operated by the respondent at Bakers Road, Coburg in Victoria.
Clause 31 of the award provided as follows :-
'31. AUTHORISED PERSON MAY ENTER FACTORY
(a) Any person or persons not to exceed two duly authorised by the Industrial Registrar or Deputy Industrial Registrar in writing (such authorisation shall be terminable at the will of the Industrial Registrar or Deputy Industrial Registrar) shall be allowed to enter the factory or workshop during working hours. The employer shall in person, or by representatives on his behalf, be entitled to accompany the authorised person or persons during an inspection. Access shall be granted to the wages book or time sheets or records covering all employees, including outdoor workers, in the employ of that employer. The employers shall be advised on all occasions when entry is sought.
Wages books or time sheets or records, or a true copy thereof, must be kept on the premises at which employees are working and be made available for inspection on demand. Any failure on the part of an employer in this respect shall constitute a breach of the award.
Authorised officials shall not be denied entry to an establishment on the ground that the employer or a nominated representative is not available to grant access at the time entry is sought.
The work and duties of all employees in the establishment and the business of the employer shall be interfered with as little as possible by the authorised person or persons.
(b) An employer shall permit any person authorised by the Registrar or Deputy Registrar in writing to enter from time to time the one or several factories or workshops of that employer during the mid-day meal to conduct legitimate union business; and once during each month at a time most convenient to an employer during working hours, for the purpose of collecting members' contributions.
Such authorised person shall inform the person-in-charge (a person shall be in charge) of his arrival before entering the workshop or factory. Such official shall have reasonable ingress into the factory and access to the employees. If any official so authorised makes himself objectionable during any such visit to the employer (or his representative) or to any employee, his authorisation may be terminated by the Registrar or Deputy Industrial Registrar on an application by the employer.
(c) Where any employer or his representative fails to comply with the requirements of this clause, the failure shall constitute a breach of this award.
(d) Where any union official behaves in an objectionable manner such conduct shall constitute a breach of this award.'
When the matter came on for a directions hearing on 27 May, 1983, the respondent was represented by Mr. F. Galbally, solicitor, who consented to an order fixing the date of hearing for 6 June, 1983. On that day when the matter was called on for hearing Mr. Galbally appeared as a matter of courtesy to inform the Court that on the previous Friday he had cancelled his retainer by the respondent. He informed the Court that he had nonetheless been speaking to a director of the respondent company on the morning of the hearing. After some discussion the matter was stood down and on the resumption Mr. Galbally said that he had again spoken to a director of the respondent and that there would be no application made on behalf of the respondent for any adjournment of the matter. Affidavits of service stated that on 10 May, 1983 the application and supporting affidavits had been served on both Mr. and Mrs. Cefala, each of whom had at the time admitted being a director of the respondent.
The application was supported by oral evidence by each of the authorised persons which established the breaches alleged. As to penalty it was not suggested that the respondent had previously committed a breach of any award. I have taken that factor into account and also the fact that the maximum penalty which may be imposed by the Court in respect of a breach is $1,000-00. The amount of the penalties should be such as to ensure that the respondent and other employers understand the importance of complying with the provisions of clause 31 of the award. I have taken into account the fact that the respondent will be ordered to pay four penalties in all. I consider that the total amount of the penalties imposed is appropriate for the breaches of the award found to have been committed by the respondent.
The breaches of the award established by the evidence, in the order in which they are alleged in the application, were as follows :-
1. & 2. On 2 June, 1982 the respondent failed to have on the premises at which employees were working pursuant to the award, the wages books or a true copy thereof. The evidence also established that on the same date the respondent failed to make the wages books available for inspection by Katherine Sdrinis. However Mr. Marshall, of counsel, on behalf of the applicant, conceded that the latter breach had arisen out of a course of conduct by the respondent and accordingly these two breaches must 'be treated as a single breach of' clause 31(a) of the award (see s. 119(1A) of the Act).
The failure to have the wages books at the premises on 2 June, 1982 was a serious breach of the term of the award. The only explanation offered on behalf of the respondent at the time of the discussions with the authorised persons was that the books were elsewhere but it was not known when they would be returned to the premises. That is, of course, no excuse as clause 31(a) expressly requires that the 'wages books or time sheets or records, or a true copy thereof, must be kept on the premises.' Doubtless, the award maker realized that from time to time it would be necessary for the wages books to be taken elsewhere and hence provision was expressly made that, in the absence of the wages books, the employer must keep on the premises 'a true copy' of them and make that copy 'available for inspection on demand'. A failure to make them available on demand is expressly stated to be a breach of the award. The award requirement that wages books be kept on the premises and be made available for inspection on demand is a very important provision as it is central to the enforcement of the award. I impose a penalty of $400-00.
3. On 2 June, 1982 the respondent, in breach of clause 31(b) of the award, failed to allow Katherine Sdrinis and Lidia Jerkovic, two duly authorised persons, to have reasonable ingress into the factory and access to the employees of the respondents. On the evidence before the Court Mrs. Lucy Cefala said to an authorised person that if she tried to collect the members' contributions in working hours she (Mrs. Cefala) 'would take it out on them' (the members). For this serious breach of clause 31(b) of the award I impose a penalty of $400-00.
4. & 5. On 29 June, 1982 the respondent again failed to have on the premises the wages books or a true copy thereof. As in the case of breaches 1 and 2 above, the evidence again showed that the respondent had failed to make the records available for inspection on demand. For similar reasons those two breaches are treated as constituting a single breach of the award (s. 119(1A)). I regard this breach, occurring on 29 June, 1982, as being more serious than the breach on 2 June, 1982. By the later date the respondent already had knowledge of and had had time to reflect upon the demand made for the wages books on 2 June, 1982. Further, the evidence established that Katherine Sdrinis, in order to avoid wasting her time by going out to the factory if the wages books were not there to be inspected, had telephoned one of the directors of the respondent, Mrs. Lucy Cefala, on three occasions between 2 June and 29 June, 1982 to enquire as to whether the wages books had been returned to the premises. For this more serious breach I impose a penalty of $600-00.
6. & 7. On 29 June, 1982 the respondent again failed to allow Katherine Sdrinis and Lidia Jerkovic reasonable ingress into its factory and access to its employees. On that day the respondent also failed to allow Katherine Sdrinis and Lidia Jerkovic entry to the respondent's factory during working hours for the purpose of collecting contributions from members of the organization. These two breaches appear to have arisen out of a course of conduct by the respondent and accordingly are treated as constituting a single breach of clause 31(b) of the award.
Mrs. Lucy Cefala told Katherine Sdrinis on that day that she did not have to let her in to the factory during working hours to speak to the members and collect their contributions. At the suggestion of Katherine Sdrinis, Mrs. Lucy Cefala rang The Victorian Chamber of Manufactures and both she and Katherine Sdrinis spoke to a Mr. Arthur Legg. Katherine Sdrinis told the Court that she heard Mrs. Lucy Cefala arguing with him about 'what her rights were and what our rights were'. Following that conversation Mrs. Cefala said 'I do not care, this is my factory and you are going to do what I tell you ... you are not to come in here again. Next time you come I will call the police. If you ever come again, I will lock the door.' On the evidence this must be treated as a more serious breach than that occurring on 2 June, 1982 because, again, the respondent had had time to consider its position and to reflect on what had happened. I impose a penalty of $600-00.
In my opinion it is appropriate to make the order sought by the applicant under s. 120 of the Act that each penalty imposed for the breaches be paid by Cefala Nominees Pty. Ltd. to the Clothing and Allied Trades Union of Australia.
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