Coles v Elsen Bros Pty Ltd

[2007] FMCA 1838

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COLES v ELSEN BROS PTY LTD [2007] FMCA 1838

INDUSTRIAL LAW – Pecuniary penalties – breaches of award – underpayment of annual leave, annual leave loading and payment in lieu of notice.

Workplace Relations Act1996; ss, 167

Kelly v Fitzpatrick [2007] FCA 1080
Gibbs v City of Altona (1992) 42 IR 255
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Martin v W & K Crust Pty Ltd [2007] FMCA 992

Applicant: ALLISON MARGARET COLES

Respondent: ELSEN BROS PTY LTD T/as BRISBANE ROCK SALES & HELIDON DIMENSIONAL SANDSTONE

File number: BRG 573 of 2007

Judgment of: Wilson FM

Hearing date: 31 October 2007

Date of last submission: 31 October 2007

Delivered at: Brisbane

Delivered on: 2 November 2007

REPRESENTATION

Counsel for the Applicant: Mr Horneman-Wren

Solicitors for the Applicant: Clayton Utz

Counsel for the Respondent: Mr Murdoch

Solicitors for the Respondent: Bennett Carroll

ORDERS

1. The respondent pay to the Commonwealth the following penalties:

   (a)In respect of the admitted breach of clause 4.9.2 of the Notional Agreement Preserving State Awards between the respondent and Mr Patrick Scherger the sum of $8,800.00;

   (b)In respect of the admitted breach of clauses 7.1.1, 7.1.2, 7.1.3 and 7.1.4 of the Notional Agreement Preserving State Awards between the respondent and Mr Patrick Scherger the sum of $11,600.00;

   (c)In respect of the admitted breach of clauses 7.1.5 of the Notional Agreement Preserving State Awards between the respondent and Mr Patrick Scherger the sum of $1,600.00.

2. Payment of the penalties in order (1) be made as follows:

   (a)The sum of $5,000.00 on or before 30 November 2007;

   (b)The sum of $5,000.00 on or before 31 December 2007;

   (c)The sum of $5,000.00 on or before 31 January 2008;

   (d)The sum of $5,000.00 on or before 29 February 2008; and

   (e)The sum of $2,000.00 on or before 31 March 2008.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 573 of 2007

ALLISON MARGARET COLES

Applicant

And

ELSEN BROS PTY LTD T/as BRISBANE ROCK SALES & HELIDON DIMENSIONAL SANDSTONE

Respondent

REASONS FOR JUDGMENT

1. Until 12 May 2006 Patrick Scherger was employed by the respondent as its Site Senior Executive managing work performed at the respondent’s quarry. Mr Scherger was dismissed in somewhat unusual circumstances. He had been having an affair with the then wife of one of the then directors of the respondent. He had also requested a reference from the respondent’s office manager, no doubt creating a belief in the minds of those controlling the respondent that he intended to resign from his employment.

2. Following upon unsuccessful negotiations the applicant, a workplace inspector employed by the Workplace Ombudsman, and appointed as such under section 167 of the Workplace Relations Act1996 (Cth) (“the Act”) brought proceedings against the respondent pursuant to s.718 and 719 of the Act.

3. The applicant sought penalties, alleging that the respondent had breached applicable provisions in the Quarry, Crushed Stone, Sand And Gravel Industry Award – State (Queensland) 2003 (now a Notional Agreement Preserving State Award) that governed…