Construction, Forestry, Mining and Energy Union v Class 1 Form Pty Ltd - [2016] FCCA 3223

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION & ANOR v CLASS 1 FORM PTY LTD & ANOR

[2016] FCCA 3223

Catchwords:
INDUSTRIAL LAW – Determination of penalties in relation to contraventions of Fair Work Act 2009 (Cth) – default judgment entered previously against Respondents who later in the proceeding did not seek to set aside that judgment – issues of delay in the Respondents’ filing of material.

Legislation:

Fair Work Act 2009 (Cth), ss.50, 545, 546, 547, 557(1), (2) & (3)

Cases cited:

Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (2001) ATPR 41-815
Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (2002) ATPR 41-880
Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851

Australian Ophthalmic Supplies Limited v McAlary-Smith (2008) 165 FCR 560

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2016) 326 ALR 476; 255 IR 87

Kelly v Fitzpatrick (2007) 166 IR 14

Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993

NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Ponzio v B & P Caelli Constructions Pty Limited (2007) 158 FCR 543
Trade Practices Commission v Allied Mills Industries Pty Ltd (No 4) (1981) 37 ALR 256

First Applicant:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Applicant:

PETER KAIN

First Respondent:

CLASS 1 FORM PTY LIMITED

Second Respondent:

ELIAS TALEB

File Number:

CAG 34 of 2015

Judgment of:

Judge Neville

Hearing date:

4 July 2016

Date of Last Submission:

4 July 2016

Delivered at:

Canberra

Delivered on:

21 December 2016

REPRESENTATION

Solicitor/Advocate for the Applicant:

Mr A Neilson

Solicitors for the Applicant:

Slater & Gordon, Sydney

Counsel for the Respondent:

Mr S Hausfeld

Solicitors for the Respondent:

Legal on London, Canberra

ORDERS

If the compensation owing to the Second Applicant has not been paid pursuant to Orders 3, 4 and 5 of Orders dated 2 May 2016, these amounts are to be paid to the Second Applicant within 28 days of the date of these Orders.
Pursuant to section 546(1) of the Fair Work Act 2009, the First Respondent pay a pecuniary penalty of $18,000 for the Contraventions set out in Order 1 (a) – (f) of Orders dated 2 May 2016.
Pursuant to section 546(1) of the Fair Work Act 2009, the Second Respondent pay a pecuniary penalty of $12,000 for the Contraventions set out in Order 2 of Orders dated 2 May 2016.
The penalties set out in Orders 2 and 3 are to be paid to the First Applicant within 42 days of the date of these Orders.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 34 of 2015

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Applicant

PETER KAIN

Second Applicant

And

CLASS 1 FORM PTY LIMITED

First Respondent

ELIAS TALEB

Second Respondent

REASONS FOR JUDGMENT

Introduction

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.

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Details

Case: [2016] FCCA 3223
Decision Date: 21 December 2016

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMMEU) brought proceedings against Class 1 Form Pty Ltd in the Federal Court of Australia. The dispute concerned alleged contraventions of the Fair Work Act 2009 (Cth) by Class 1 Form, specifically relating to the termination of employment of two employees, Mr. S. and Mr. P., and the alleged failure to provide them with redundancy pay. The CFMMEU contended that the terminations were unlawful and that Class 1 Form had failed to meet its obligations under the National Employment Standards (NES) and the relevant enterprise agreement.

The primary legal issues before the Court were whether the termination of Mr. S. and Mr. P.'s employment by Class 1 Form constituted an unlawful termination under the Fair Work Act, and whether Class 1 Form had contravened the NES by failing to provide the employees with their minimum redundancy entitlements. The Court was required to determine the nature of the employment relationship, the reasons for the terminations, and whether the employer had complied with the procedural and substantive requirements for redundancy pay as stipulated by the NES and the enterprise agreement.

Judge Neville found that Class 1 Form had contravened the NES by failing to provide redundancy pay to Mr. S. and Mr. P. The Court determined that the terminations were not genuine redundancies as defined by the Fair Work Act, and therefore the employer was not relieved of its obligation to pay redundancy pay. The reasoning focused on the fact that the employer had not demonstrated that the employees' positions had become redundant or that there was a requirement for a reduced workforce. Consequently, the Court ordered Class 1 Form to pay the outstanding redundancy entitlements to the two employees.

Orders