Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v CJ Manfield Pty Ltd (No.2)

Case [2011] FMCA 724


FEDERAL MAGISTRATES COURT OF AUSTRALIA

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.
Electrical, Engineering and Contracting Industries (Northern Territory) Award 1995, cl.33.10
Crimes Act 1914 (Cth), s.4AA(1)
Workplace Relations Act 1996 (Cth), ss.173, 232, 233, 234, 235, 236, 718(1) - Item 3(d), 719 (1), (2) and (4), 841(b)

ACCC v Colgate-Palmolive Pty Ltd [2002] ATPR 41-880; [2002] FCA 619
ACCC v IPM Operations Maintenance Loy Yang Pty Ltd (No.2) [2007] FCA 11

Attorney-General v Tishy (1982) 30 SASR 84
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2011] FCA 810
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8

Carr v CEPU & Anor [2007] FMCA 1526
Commonwealth Bank of Australia & Anor v Finance Sector Union of Australia (2007) 157 FCR 329; [2007] FCAFC 18
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v CJ Manfield Pty Ltd (2011) 63 AILR 101-370; [2011] FMCA 374
CFMEU v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231; [1999] FCA 1714
Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847
Furlong v AWU & Ors (2007) 162 IR 171; [2007] FMCA 443
Gibbs v City of Altona (1992) 37 FCR 216
Leighton Contractors & Anor v CFMEU & Ors (2006) 164 IR 375; [2006] WASC 317
MacMahon Mining Services Pty Ltd v Williams (2010) 201 IR 123; [2010] FCA 1321
Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] ATPR 41-993; [2004] FCAFC 72
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Ponzio v B & P Caelli Constructions Pty Ltd and Ors (2007) 158 FCR 543; [2007] FCAFC 65
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (No 2) (2001) 110 IR 372; [2001] FCA 672
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61; [2008] FCA 1426

Trade Practices Commission v CSR Ltd [1991] ATPR 41-076

Williams v MacMahon Mining Services Pty Ltd(No.3) (2010) 195 IR 161; [2010] FMCA 49

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Applicant: 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

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Details
AGLC
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

28 October 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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