Coochey v Commonwealth

[2005] FCA 1165

FEDERAL COURT OF AUSTRALIA

Coochey v Commonwealth of Australia [2005] FCA 1165

INDUSTRIAL LAW - certified agreements – provisions as to redeployment and retrenchment – breaches established.

INDUSTRIAL LAW – whether Commonwealth ‘body corporate’ for purpose of penalty provisions to Workplace Relations Act 1996.

Acts Interpretation Act 1901 (Cth)
Judiciary Act 1903  (Cth)
Trade Practices Act 1974 (Cth)
Workplace Relations Act 1996 (Cth)

CFMEU v Coal & Allied Operations Pty Ltd (No. 2) [1999] FCA 1714; (2000) 47 AILR 4-215
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 1364; (2001) 108 IR 228
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85

Workcover NSW v Police Services of NSW (2000) 50 NSWLR 333

JOHN COOCHEY v COMMONWEALTH OF AUSTRALIA

A 30 OF 2002

MADGWICK J
24 AUGUST 2005
SYDNEY (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 30 OF 2002

BETWEEN:	JOHN COOCHEY APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGE:	MADGWICK J.
DATE OF ORDER:	24 AUGUST 2005
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.A penalty of $8,000 be imposed on the respondent in respect of the first breach.

2.A penalty of $100 be imposed on the respondent in respect of the second breach.

3.In each case the penalties are to be paid to the applicant within twenty-one days.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 30 OF 2002

BETWEEN:	JOHN COOCHEY APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT

JUDGE:	MADGWICK J.
DATE:	24 AUGUST 2005
PLACE:	SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

MADGWICK J:

1. This is an application seeking the imposition of penalties for alleged breaches of a certified agreement registered under s 170LJ of the Workplace Relations Act 1996 (Cth) (‘the Act’).

2. The applicant was a career public servant.  He was born on 9 May 1950.  He commenced service in the Australian Public Service (‘the APS’) on 8 November 1976.  By 1986 he had gained promotion to Senior Officer Grade B (‘SOGB’) level, later known as Executive Level 2 (‘EL2’), in the Department of Defence (‘the Department’).

3. Due to governmental rationalisation and internal re-structuring of the Department, Mr Coochey was first regarded as ‘surplus’ (in later terminology, ‘potentially excess’) from about 1992.  To maintain his employment, he took a number of lengthy placements elsewhere in Commonwealth public employment, on secondment from the Department.  He returned to the Department in late 1998.  His employment with the Department ceased on 9 September 1999 in circumstances explained below.

4. By the time the applicant returned to the Department the subject certified agreement (‘the Agreement’) was in force.  It commenced to operate and was certified by the Australian Industrial Relations Commission (‘the AIRC’) on 6 May 1998 and was in force at all material times.

5. To understand the alleged breaches…