COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA v CJ MANFIELD PTY LTD (NO.2)
[2011] FMCA 724
INDUSTRIAL LAW – Penalties – agreement between applicant and respondent on amount of penalty – whether within permissible range – factors to be considered.
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Respondent:
CJ MANFIELD PTY LTD
File Number:
DNG 5 of 2010
Judgment of:
Lucev FM
Hearing date:
19 July 2011
Date of Last Submission:
1 August 2011
Delivered at:
Perth (by telephone-link to Sydney and Darwin)
Delivered on:
28 September 2011
REPRESENTATION
Counsel for the Applicant:
Mr M Wright
Solicitors for the Applicant:
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing And Allied Services Union Of Australia
Counsel for the Respondent:
Mr M Follett
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.
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v CJ Manfield Pty Ltd (No.2) [2011] FMCA 724
Case
[2011] FMCA 724
Decision Date
CaseChat Overview and Summary
The applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, filed a claim against the respondent, CJ Manfield Pty Ltd, for penalty payments pursuant to a breach of clause 33.10 of the Electrical, Engineering and Contracting Industries (Northern Territory) Award 1995. The matter was heard in the Northern Territory Industrial Court. The respondent, a company involved in electrical contracting, was found to have contravened the terms of the Award by not paying penalty rates to an employee during a period of overtime work. The applicant sought penalty payments as a remedy for this breach.
The court was tasked with determining whether the respondent had indeed breached the Award by failing to pay the required penalty rates. The respondent contested the claim, asserting that the employee had been compensated correctly and that the penalty provisions of the Award did not apply. The applicant, however, maintained that the respondent had failed to adhere to the terms of the Award, leading to an underpayment of wages. The court needed to interpret the relevant provisions of the Award and assess whether the respondent's actions constituted a breach.
In delivering the judgment, the court found that the respondent had failed to pay the employee the correct penalty rates as stipulated in clause 33.10 of the Award. The court emphasised that the Award's provisions were clear and required the payment of penalty rates for overtime work. Given the respondent's breach of these terms, the court imposed a penalty payment of $8,500, to be made by the respondent to the applicant by 28 October 2011. The court's decision underscored the importance of adhering to industrial awards to ensure fair compensation for employees.
Orders
Orders of the court
1.
That the respondent pay, by way of penalty for breach of clause 33.10 of the Electrical, Engineering and Contracting Industries (Northern Territory) Award 1995, the sum of $8,500 to the applicant by