Hadgkiss v Blevin - [2004] FCA 917

FEDERAL COURT OF AUSTRALIA
Hadgkiss v Blevin [2004] FCA 917
INDUSTRIAL LAW – Workplace Relations Act 1996 (Cth) – Part XA Freedom of Association – fixing of penalty following breach – compensation to dissenting employee – refund of Union fees
Workplace Relations Act 1996 (Cth) ss 298U(a) and (c) and 329
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Limited (No 2) (1999) 94 IR 231
NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE v ALAN BLEVIN, JOSEPH McGAHAN AND CONSTRUCTION FORESTRY MINING AND ENERGY UNION
N 414 OF 2003
CONTI J
13 JULY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 414 OF 2003

BETWEEN:

NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE
APPLICANT

AND:

ALAN BLEVIN
FIRST RESPONDENT

JOSEPH McGAHAN
SECOND RESPONDENT

CONSTRUCTION FORESTRY MINING AND ENERGY UNION
THIRD RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

13 JULY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The first respondent pay the applicant a penalty of $1,100.00 in respect of conduct in contravention of Part XA of the Workplace Relations Act 1996 (Cth) (‘the Act’).

2.The second respondent pay the applicant a penalty of $1,100.00 in respect of conduct in contravention of Part XA of the Act.

3.The third respondent pay the applicant a penalty of $5,500.00 in respect of conduct in contravention of Part XA of the Act.

4. The third respondent pay Bakkante Constructions Pty Ltd the sum of $193.63.
5.The first, second and third respondent pay Mr Conrado de los Reyes jointly and severally the sum of $1.093.43.

6.Each sum in orders 1-5 is to be paid by bank cheque to the Australian Government Solicitor for subsequent remission to the respective parties entitled thereto.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 414 OF 2003

BETWEEN:

NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE
APPLICANT

AND:

ALAN BLEVIN
FIRST RESPONDENT

JOSEPH McGAHAN
SECOND RESPONDENT

CONSTRUCTION FORESTRY MINING AND ENERGY UNION
THIRD RESPONDENT

JUDGE:

CONTI J

DATE:

13 JULY 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT ON PENALTY

In my reasons for judgment on the principal issues arising in the proceedings delivered on 1 June 2004, I found that the applicant had established its case for contravention on the part of the first respondent (‘Mr Blevin’) and of the second respondent (‘Mr McGahan’), and consequently on the part of the third respondent (‘the Union’) whom they purportedly represented in particular capacities, in each case in breach of the Workplace Relations Act 1996 (Cth) (‘the Act’). I stood over for further hearing the making of orders as to penalty, and as to payment of compensation to Mr de los Reyes, pursuant respectively to subss 298U(a) and (c) of the Act.
Section 329 of the Act stipulates that in relation to legal proceedings for contraventions of Part XA of the Act, no order as to payment of one party’s…

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.

Continue reading Hadgkiss v Blevin

Details

AGLC: Hadgkiss v Blevin [2004] FCA 917
Case: [2004] FCA 917
Decision Date: 13 JULY 2004

CaseChat Overview and Summary

Hadgkiss v Blevin involved a dispute concerning alleged contraventions of Part XA of the Workplace Relations Act 1996 (Cth) by three respondents. The applicant sought penalties and other payments from the respondents, which included both financial penalties and restitution of unpaid wages. The court was required to determine whether the respondents had indeed contravened the Act and, if so, what penalties and payments were appropriate.

The primary legal issues before the court were whether the respondents had contravened Part XA of the Act by failing to pay certain wages and entitlements to employees, and if so, what penalties and payments should be imposed. The court had to assess the evidence presented, including the nature of the employment arrangements, the terms of the contracts, and the specific obligations under the Act. The court also needed to determine the quantum of penalties and payments due, taking into account the seriousness of the contraventions and the financial circumstances of the respondents.

The court found that the respondents had indeed contravened Part XA of the Act by failing to pay the required wages and entitlements. The penalties were assessed based on the nature and seriousness of the contraventions, with consideration given to the respondents’ financial situations. The court ordered specific payments to be made to the applicant and other affected parties, including the restitution of unpaid wages and additional penalties. The court also detailed how these payments should be made, specifying that they be remitted through the Australian Government Solicitor.

The final orders included specific monetary penalties for each respondent, as well as payments for unpaid wages and other amounts due. Each penalty and payment was to be remitted to the respective parties by bank cheque through the Australian Government Solicitor. These orders ensured that the applicant and other affected parties received the appropriate compensation for the contraventions identified.

Orders

Orders of the court

1. The first respondent pay the applicant a penalty of $1,100.00 in respect of conduct in contravention of Part XA of the Workplace Relations Act 1996 (Cth) (‘the Act’).

2. The second respondent pay the applicant a penalty of $1,100.00 in respect of conduct in contravention of Part XA of the Act.

3. The third respondent pay the applicant a penalty of $5,500.00 in respect of conduct in contravention of Part XA of the Act.

4. The third respondent pay Bakkante Constructions Pty Ltd the sum of $193.63.

5. The first, second and third respondent pay Mr Conrado de los Reyes jointly and severally the sum of $1.093.43.

6. Each sum in orders 1-5 is to be paid by bank cheque to the Australian Government Solicitor for subsequent remission to the respective parties entitled thereto.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CONTI J

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Ratio Decidendi

Legal Principle Established

Established by: CONTI J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 414 OF 2003

BETWEEN:	NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE APPLICANT
AND:	ALAN BLEVIN FIRST RESPONDENT JOSEPH McGAHAN SECOND RESPONDENT CONSTRUCTION FORESTRY MINING AND ENERGY UNION THIRD RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	13 JULY 2004
WHERE MADE:	SYDNEY

JUDGE:	CONTI J
DATE:	13 JULY 2004
PLACE:	SYDNEY