Coles v Elsen Bros Pty Ltd

Coles brought an action against Elsen Bros Pty Ltd in the Federal Court, alleging breaches of the Notional Agreement Preserving State Awards in relation to the employment of Mr Patrick Scherger. The dispute centred on the penalties for these breaches and the manner in which they should be paid. The court was tasked with determining the appropriate penalties for the breaches and the method of payment.

The primary legal issue for the court was to ascertain the correct penalties for the breaches of the agreement and to decide on a payment schedule that would be fair and enforceable. The court needed to ensure that the penalties reflected the seriousness of the breaches and that the payment schedule was structured to allow for compliance while also maintaining a degree of financial pressure on the respondent.

In delivering its judgment, the court meticulously reviewed the terms of the Notional Agreement and the nature of the breaches. It determined that the penalties for the breaches of clause 4.9.2, clauses 7.1.1 to 7.1.4, and clause 7.1.5 were as follows: $8,800.00, $11,600.00, and $1,600.00 respectively. The court also set out a detailed payment schedule, specifying the amounts to be paid at various dates from November 2007 to March 2008.

The court ordered Elsen Bros Pty Ltd to pay the penalties as outlined, with the first payment of $5,000.00 due by 30 November 2007, followed by four further payments of $5,000.00 each by the end of each successive month, and the final payment of $2,000.00 by 31 March 2008. This structured payment plan was designed to facilitate compliance while ensuring that the penalties were effectively enforced.