Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Alcoa of Australia - [1998] FCA 788

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - Alleged Breach of Award - Non-payment of Wages - whether refusal of lawful and reasonable instruction - whether waiver of rejection of part-performance.

Industrial Relations Act 1988 (now Workplace Relations Act 1996) - s 178
Alcoa of Australia (Western Australia) Award 1982

Gapes v Commercial Bank of Australia Ltd (1980) 37 ALR 20.
Spotless Catering Services Pty Ltd v FLAIEU (1988) 25 IR 255.
Csomore v Public Service Board (1986) 10 NSWLR 587.

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA -v- ALCOA OF AUSTRALIA
WI 1481 of 1996

R.D. FARRELL JR
6 JULY 1998
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WI 1481 of 1996

BETWEEN:
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

AND: ALCOA OF AUSTRALIA

COURT: R.D. FARRELL JR

DATE OF ORDER: 2 JULY 1998

WHERE MADE: PERTH

THE COURT ORDERS THAT:

The application be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WI 1481 of 1996

BETWEEN:
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

AND: ALCOA OF AUSTRALIA

COURT: RD FARRELL JR

DATE: 6 JULY 1998

PLACE: PERTH

REASONS FOR DECISION

This is an application under Section 178 of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 (“the Act”). It arises from an alleged failure by the employer, Alcoa of Australia (“Alcoa”), to pay one of its employees, Mr Andrew Cattermole, an amount in wages allegedly required to be paid under an award.

The Statutory and Award Background

The application was commenced in the Industrial Relations Court of Australia. It was set down for hearing in that Court in May 1997, before the jurisdiction to hear and determine applications under Section 178 was transferred under amendments to the Act to the Federal Court of Australia. A request by the applicant for an adjournment was granted at the beginning of the hearing. When the matter came on again for hearing, on a date after the nominated transfer date, it was heard by the Federal Court of Australia.

Subsections 178(1) and (6) of the Act relevantly provide that:

“(1) ...where ...(a) person bound by an award or order of the Commission breaches a term of the award or order, a penalty may be imposed by the Court or,,, by a court of competent jurisdiction.”
“(6)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 the award or order, the court may order the employer to pay to the employee the amount of the underpayment.”

The applicant is the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Engineering and Electrical Division, W.A.…

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.

Continue reading Communications, Electrical, Electronic, Energy, Information,...

Details

AGLC: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Alcoa of Australia [1998] FCA 788
Case: [1998] FCA 788
Decision Date: 2 JULY 1998

CaseChat Overview and Summary

The matter before the court involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia, acting on behalf of its members, and Alcoa of Australia. The union alleged that Alcoa had breached industrial awards by failing to pay wages and making unlawful deductions. The union claimed that Alcoa's actions constituted a refusal to obey a lawful and reasonable instruction and that the union had waived any rejection of part-performance of the alleged breaches.

The primary legal issues the court needed to address were whether Alcoa had indeed refused to obey a lawful and reasonable instruction and whether the union had waived its right to reject partial performance of the obligations under the award. The court had to examine the specific terms of the industrial award and the conduct of the parties to determine if the union's claims were substantiated.

In examining the evidence, the court found that Alcoa had not refused to obey a lawful and reasonable instruction. The court also determined that the union had not waived its right to reject partial performance of the award obligations. Consequently, the union's application was dismissed. The court's reasoning was based on a detailed analysis of the award provisions and the conduct of the parties, leading to the conclusion that the union's claims were not supported by the evidence presented.

The court dismissed the union's application and made no further orders. The union's allegations of unlawful deductions and non-payment of wages were not substantiated, and the union's claims regarding the waiver of rejection of part-performance were also rejected. The court's decision upheld Alcoa's position and clarified the legal obligations under the industrial award.

Orders

Orders of the court

The application be dismissed.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WI 1481 of 1996

BETWEEN:	COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
AND:	ALCOA OF AUSTRALIA

COURT:	R.D. FARRELL JR
DATE OF ORDER:	2 JULY 1998
WHERE MADE:	PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WI 1481 of 1996

COURT:	RD FARRELL JR
DATE:	6 JULY 1998
PLACE:	PERTH