Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Beyond Help Pty Ltd (Formerly Beyond Communications Pty Ltd)
[2012] FMCA 1267
•7 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION v BEYOND HELP PTY LTD (FORMERLY BEYOND COMMUNICATIONS PTY LTD) | [2012] FMCA 1267 |
| INDUSTRIAL LAW – Extempore judgment – respondent in default within meaning of rule 13.03A – application for judgment pursuant to rule 13.03B – application granted. |
| Corporations Act 2001 Fair Work Act 2009 Federal Magistrates Court Rules 2001, r.13.03A, 13.03B |
| Australian Competition and Consumer Commission v Dataline [2006] FCA 1427 Facton Limited and Ors v Dash Industries Proprietary Limited & Anor [2010] FMCA 709 Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 |
| Applicant: | COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION |
| Respondent: | ALLIED SERVICES UNION v BEYOND HELP PTY LTD (FORMERLY BEYOND COMMUNICATIONS PTY LTD) |
| File Number: | MLG 1181 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 7 December 2012 |
| Date of Last Submission: | 7 December 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 7 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | n/a |
| Solicitors for the Applicant: | Mr Reidy |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | No appearance |
ORDERS
The Respondent pay the employees, Mark Burfurd, Rhys Hodgins, Brent Abbott, Rachael Webster, Jamie Thomas and Lee Francois (“the employees”) the sum of $14,383.79 in outstanding wages in the amounts indicated in Appendix B to the Statement of Claim.
The Respondent pay the employees the sum of $18,428.29 in annual leave in the amounts indicated in Appendix B to the Statement of Claim.
The Respondent pay employees, Mark Burford, Rhys Hodgins and Rachael Webster the sum of $12,300.30 in redundancy in the amounts indicated in Appendix B to the Statement of Claim.
The Respondent pay employees Mark Burfurd, Brent Abbott, Rachael Webster, Jamie Thomas and Lee Francois the sum of $15,100.60 being payment in lieu of notice in the amounts indicated in Appendix B to the Statement of Claim.
The Respondent pay Mark Burfurd $812.78 and Brent Abbott $455.08 in superannuation to be paid into the said workers’ nominated superannuation fund.
The Respondent pay interest on all of the above sums at the penalty interest rate fixed for the State of Victoria from the date of these Orders until the sums are paid.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1181 of 2012
| COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION |
Applicant
And
| BEYOND HELP PTY LTD (FORMERLY BEYOND COMMUNICATIONS PTY LTD) |
Respondent
REASONS FOR JUDGMENT
This matter commenced by way of application supported by statement of claim, both filed on 21 September of this year. The matter came before the Court on 9 October 2012, and was adjourned for proof of service. On 14 November 2012, the applicant was granted leave to file an affidavit of service which proves that the respondent, which is a corporation, has been served by postal service as is permitted by the Corporations Act. The respondent was ordered by me, on 14 November 2012, to file and serve a response and defence to the statement of claim on or before 5 December 2012, and the matter was adjourned for directions today. The final order made then was that, in default of compliance by the respondent with order 2, the matter proceed on an undefended basis on 7 December 2012.
The matter has been called. The respondent has not appeared and the respondent has not complied with the orders made. The respondent is clearly in default within the meaning of order 13.03A of this Court’s Rules, in that it has failed to comply with an order of the Court in the proceeding. This brings into play the Court’s discretionary powers in order 13.03B, and relevantly 13.03B(2)(c), which provides that:
If a respondent is in default, the Court may:
(c) if the proceeding was commenced by an application supported by a statement of claim…give judgment against the respondent for the relief that:
(i) the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has the power to grant.
The meaning of that phrase was considered by Riley FM in the case of Facton Limited and Ors v Dash Industries Proprietary Limited & Anor [2010] FMCA 709, where at [4] her Honour said:
In Arthur and Ors v Vaupotic Investments Proprietary Limited and Ors [2005] FCA 433 at [3], Heerey J discussed the equivalent rule in the Federal Court Rules and said:
“The rule does not require proof by way of evidence of the applicant’s claim; rather that on the face of the statement of claim there is a claim for the relief sought and, of course, that the court has jurisdiction to grant that relief.”
The operation of the relevant equivalent Federal Court Rules was considered in greater detail by Flick J in Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 at [15] and following. I do not propose to paraphrase his Honour’s detailed discussion of all the relevant history about this rule, but I note that notwithstanding the court’s power, it is a power to be exercised in a discretionary fashion, and it is not a given that a defaulting respondent should be shut out altogether from the case. His Honour observed at [21]:
Other than necessarily recognising that the power must be exercised with caution, there is little detailed consideration as to how the discretion must otherwise be exercised.
His Honour went on, nonetheless, to refer to various authorities about parallel provisions, and referred in particular to the judgment of Kiefel J of the Federal Court, as her Honour then was, in Australian Competition and Consumer Commission v DatalineNetAu Pty Ltd [2006] FCA 1427. However, that aspect of the matter was concerned with whether affidavit evidence was either necessary or permissible.
Having made it clear that I approach this case with all those matters in mind, I turn to the statement of claim. The statement of claim pleads that the plaintiff is an organisation within the meaning of the Fair Work Act. It clearly is. The respondent is pleaded to be a corporation. The employment of the six employees with whom the court is presently concerned is pleaded, as is their employment and their membership of the union. The relevant enterprise agreement is also pleaded, and the breaches of that agreement – in terms of failure to pay wages, failure to pay annual leave, failure to pay redundancy, and failure to pay in lieu of notice – are all pleaded. It is pleaded that this contravened the Act in breach of section 50, and once again it is plain from the terms of section 50 that that assertion is made out.
The relief sought is effectively that there be orders to pay the employees the matters contained in schedule B of the statement of claim, save that the redundancy payments there detailed in respect of Jamie Thomas, Lee Francoise and Brent Abbott are no longer pressed, because they have already been satisfied from an industry protection fund. Accordingly, I will make an order that Beyond pay the employees $14,383.79 in unpaid wages, in the manner indicated in appendix B. That is to say, each employee is individually to be entitled to judgment to the sums therein set out.
The next order I will deal with is the order that the respondent pay the employees compensation of $18,428.29. Once again, the employees should be paid those amounts, as detailed in appendix B.
The next order is redundancy, and I order that there be payments as set out in appendix B of the statement of claim to Mark Burford, Reece Hodgins and Rachel Webster, in the sums set out in schedule B.
The next one is the payment in lieu of termination. Once again, I order that the respondent pay $15,100.30 to the relevant employees, as detailed in appendix B to the statement of claim.
I further next order that the respondent pay into the employees’ nominated superannuation funds the amount of $1267.86, once again as indicated in appendix B to the statement of claim. I further order that interest be payable on all these sums from the date of judgment, at the penalty interest rate obtaining for the State of Victoria, until the judgments are satisfied.
That leaves order 11 sought in the statement of claim, which is an order for a pecuniary penalty for breach of a civil penalty provision. As I discussed with counsel, the difficulty with this aspect of the application is that the contravention of the civil penalty proceeding is not, in fact, pleaded in the statement of claim. It is only to be inferred, so to speak, from the relief sought in the proposed order 11. In my view, the court should not embark upon the quasi criminal exercise that the civil penalty provisions involve, in circumstances where there is not a precise and comprehensible pleading establishing the contravention that I fully accept is highly likely to have occurred. Indeed, there are likely to have been multiple contraventions, but in circumstances where those contraventions are not pleaded, I am not prepared to exercise my discretion to grant that aspect of the claim. So there will be orders in those terms.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Burchardt FM.
Date: 17 April 2013
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