Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 2) - [2006] FCA 740

FEDERAL COURT OF AUSTRALIA
Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 2) [2006] FCA 740
INDUSTRIAL LAW – payments in relation to periods of industrial action – breach admitted – penalty imposed in accordance with the agreement of the parties operating at arms length
Workplace Relations Act 1996 (Cth) ss 84, 178 and 187AA
Furlong v Maxim Electrical Services (Aust) Pty Ltd [2005] FCA 1518, considered
Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428, followed
MURRAY FURLONG v MAXIM ELECTRICAL SERVICES (AUST) PTY LTD (ACN 088 295 907), WALTER J PRATT LTD (ACN 004 714 989), 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 (ACN 088 037 290)
VID 1580 OF 2004
MARSHALL J
14 JUNE 2006
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
(ACN 088 295 907)
FIRST RESPONDENT

WALTER J PRATT LTD (ACN 004 714 989)
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
(ACN 088 037 290)
SEVENTH RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

14 JUNE 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.A penalty of $1,750 be imposed on the seventh respondent for breach of s 187AA of the Workplace Relations Act 1996 (Cth).
2.The penalty so imposed be paid to the Consolidated Revenue Fund within 21 days.
3.It is declared that the seventh respondent committed a breach or non-observance of the Maxim Electrical Services Pty Ltd Enterprise Agreement 2000-2003 by failing to follow the steps detailed in cl 13 of the agreement.

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
(ACN 088 295 907)
FIRST RESPONDENT

WALTER J PRATT LTD (ACN 004 714 989)
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
(ACN 088 037 290)
SEVENTH RESPONDENT

JUDGE:

MARSHALL J

DATE:

14 JUNE 2006

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Earlier this morning, after hearing the submissions of counsel for the applicant and the seventh respondent, the Court announced that it would make the following orders and give reasons later this morning for making those orders. What follows are the Court’s reasons for making the orders set out below:
1.A penalty of $1,750 be imposed on the seventh respondent for breach of s 187AA of the Workplace Relations Act 1996 (Cth).
2. The penalty so imposed be paid to the Consolidated Revenue Fund within…

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: [2006] FCA 740
Decision Date: 14 JUNE 2006

CaseChat Overview and Summary

The matter before the court involved Furlong, the applicant, and Maxim Electrical Services (Aust) Pty Ltd, the respondent. The applicant sought a declaration that the respondent had breached an enterprise agreement and an order for a penalty against the respondent for breaches of the Workplace Relations Act 1996 (Cth). The case was heard in the Fair Work Commission, with Deputy President McCallum presiding.

The primary legal issues before the court were whether the respondent had breached the Maxim Electrical Services Pty Ltd Enterprise Agreement 2000-2003 and the Workplace Relations Act 1996 (Cth), and if so, what penalty should be imposed. The applicant argued that the respondent had failed to follow the steps outlined in clause 13 of the enterprise agreement, which pertained to the procedure for resolving disputes. The respondent denied any breach of the agreement or the Act.

The court found that the respondent had indeed breached the enterprise agreement by not following the dispute resolution process as required by clause 13. The court also determined that the respondent had contravened section 187AA of the Workplace Relations Act 1996 (Cth) by failing to provide the applicant with a copy of the dispute resolution process within a reasonable time. The court imposed a penalty of $1,750 on the respondent for the breach of the Act and declared that the respondent had breached the enterprise agreement. The penalty was to be paid to the Consolidated Revenue Fund within 21 days.

Orders

Orders of the court

1. A penalty of $1,750 be imposed on the seventh respondent for breach of s 187AA of the Workplace Relations Act 1996 (Cth).

2. The penalty so imposed be paid to the Consolidated Revenue Fund within 21 days.

3. It is declared that the seventh respondent committed a breach or non-observance of the Maxim Electrical Services Pty Ltd Enterprise Agreement 2000-2003 by failing to follow the steps detailed in cl 13 of the agreement.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WALTER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WALTER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1580 OF 2004

BETWEEN:	MURRAY FURLONG APPLICANT
AND:	MAXIM ELECTRICAL SERVICES (AUST) PTY LTD (ACN 088 295 907) FIRST RESPONDENT WALTER J PRATT LTD (ACN 004 714 989) 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 (ACN 088 037 290) SEVENTH RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	14 JUNE 2006
WHERE MADE:	MELBOURNE