Furlong v Maxim Electrical Services (Aust) Pty Ltd - [2005] FCA 1518

FEDERAL COURT OF AUSTRALIA
Furlong v Maxim Electrical Services (Aust) Pty Ltd [2005] FCA 1518
INDUSTRIAL LAW – payments in relation to periods of industrial action – breach admitted – no utility in imposing penalty
Workplace Relations Act 1996 (Cth) s 187AA
Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500, followed
Australian Competition and Consumer Commission v Woolworths (South Australia) (2003) 198 ALR 417, referred to
Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428, followed
MURRAY FURLONG v MAXIM ELECTRICAL SERVICES (AUST) PTY LTD, WALTER J PRATT LTD, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, DAVID MIER, MARK GRECH, MICHAEL DOUGLAS and MAXIM ELECTRICAL SERVICES (VIC) PTY LTD
VID 1580 OF 2004
MARSHALL J
27 OCTOBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1580 OF 2004

BETWEEN:

MURRAY FURLONG
APPLICANT

AND:

MAXIM ELECTRICAL SERVICES (AUST) PTY LTD
FIRST RESPONDENT

WALTER J PRATT LTD
SECOND RESPONDENT

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
THIRD RESPONDENT

DAVID MIER
FOURTH RESPONDENT

MARK GRECH
FIFTH RESPONDENT

MICHAEL DOUGLAS
SIXTH RESPONDENT

MAXIM ELECTRICAL SERVICES (VIC) PTY LTD
SEVENTH RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

27 OCTOBER 2005

WHERE MADE:

MELBOURNE

THE COURT DECLARES THAT:
1.The second respondent contravened s 187AA of the Workplace Relations Act 1996 (Cth) when it paid wages to the sixth respondent, Brett McCullen, Paul Derrick, Anthony Page, Richard Noonan, Paul Grant, Ray Fenton, Hamish Preston and David Vella.
2.The second respondent committed a breach or non observance of the Walter J Pratt Pty Ltd and CEPU Enterprise Agreement 2002-2005 by failing to follow the steps detailed in cl 12 of the agreement in good faith and without reasonable delay, or at all.
3.The second respondent committed a breach or non observance of cl 7 of the Walter J Pratt Pty Ltd and CEPU Enterprise Agreement 2002-2005 by failing to follow the procedure set out in cl 18 of the Victorian Building Industry Agreement and by failing to attempt to reach agreement as soon as possible.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1580 OF 2004

BETWEEN:

MURRAY FURLONG
APPLICANT

AND:

MAXIM ELECTRICAL SERVICES (AUST) PTY LTD
FIRST RESPONDENT

WALTER J PRATT LTD
SECOND RESPONDENT

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
THIRD RESPONDENT

DAVID MIER
FOURTH RESPONDENT

MARK GRECH
FIFTH RESPONDENT

MICHAEL DOUGLAS
SIXTH RESPONDENT

MAXIM ELECTRICAL SERVICES (VIC) PTY LTD
SEVENTH RESPONDENT

JUDGE:

MARSHALL J

DATE:

27 OCTOBER 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The second respondent, Walter J Pratt Ltd, admits to contravening s 187AA(1) of the Workplace Relations Act 1996 (Cth). That provision makes it unlawful for an employer to pay an employee for a period during which the employee engages in industrial action. There is a real issue in this proceeding whether the…

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: [2005] FCA 1518
Decision Date: 27 OCTOBER 2005

CaseChat Overview and Summary

In this case, Murray Furlong brought an action against Maxim Electrical Services (Aust) Pty Ltd and other respondents in the Federal Court of Australia. The dispute primarily concerned payments made by Walter J Pratt Ltd, the second respondent, to certain employees during periods of industrial action, and the alleged breaches of an enterprise agreement. The court was tasked with determining whether these payments were lawful under the Workplace Relations Act 1996 (Cth) and whether the enterprise agreement was breached by the respondents.

The central legal issues revolved around whether Walter J Pratt Ltd contravened s 187AA of the Workplace Relations Act by paying employees during industrial action, and if there were breaches of the enterprise agreement by failing to follow dispute resolution procedures. The court had to assess the appropriate penalty, if any, for these admitted breaches and consider arguments from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (third respondent) that judgment on these issues should be deferred until other respondents were dealt with.

The court reasoned that given the admitted breaches and the similarity of the circumstances to those in Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500, it would be inappropriate to impose a penalty. The court found that the contraventions were inadvertent, unlikely to recur, and involved an insignificant amount of wages. The court also noted that the interests of justice required a speedy resolution of the issues between Furlong and Walter J Pratt Ltd, especially as their facts were agreed upon. It rejected the Union's contention that deferring judgment could lead to inconsistent findings, finding support in Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428.

The court ultimately declared that Walter J Pratt Ltd had contravened s 187AA and breached the enterprise agreement but opted not to impose any penalty. No penalty was imposed for the breaches of the certified agreement as they were deemed inadvertent and tied to the admitted breach of s 187AA. The court finalized its decision by providing detailed orders regarding the contraventions and breaches.

Orders