Industrial Relations Bureau v Hassan - [1982] FCA 158

Re: INDUSTRIAL RELATIONS BUREAU
And: ISMAIL HASSAN (1982) 62 FLR 169
No. V25 of 1982
Industrial Law - Conciliation and Arbitration
2 IR 151

COURT

IN THE FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
VICTORIA DISTRICT REGISTRY
Keely J.(1)

CATCHWORDS

Industrial Law - breaches of award - underpayment of wages - whether employee who is not a member of union is "entitled under an order or award" to amounts prescribed by award - whether underpayments arose out of "a course of conduct".

S.119(1A) and (3) Conciliation and Arbitration Act 1904

Conciliation and Arbitration - Breaches of award by employer - Proceedings for recovery of pecuniary penalty - Whether breaches arose out of course of conduct - Whether employee entitled to amount under award - Payment of penalty to employee - Conciliation and Arbitration Act 1904 (Cth), ss. 119(1), (1A), (3), 120, 123.

HEADNOTE

The applicant sought the imposition of penalties upon the respondent for alleged breaches of the Vehicle - Repair, Services and Retail - Award 1976. Five breaches of the award were proved relating to an employer's: obligation to keep records of an employee, time of payment of wages, underpayment of salary, required notice upon termination of employment and failure to pay pro rata leave.

Upon the question of penalty,

Held: (1) Although the breach involving underpayment of wages related to events occurring on a number of separate occasions, breaches had arisen out of a course of conduct by the respondent within s. 119(1A) of the Conciliation and Arbitration Act.

Quinn v. Martin (1977) 31 FLR 25, applied.

(2)(a) As the employee affected by the breaches of the award was not a member of an organization of employees bound by the award, the court could not order pursuant to s. 119(3) of the Act that the respondent pay to him the amount of the underpayment. Leontiades v. F.T. Manfield Pty. Ltd. (1980) 43 FLR 193, applied. (b) However, it was an appropriate case to make an order under s. 120 of the Act that the penalty imposed upon the respondent be paid to the employee.

HEARING

Melbourne, 1982, July 26-27, 29. #DATE 29:7:1982

APPLICATION

The applicant sought the imposition of a penalty upon the respondent pursuant to s. 119 of the Conciliation and Arbitration Act 1904 for alleged breaches of the Vehicle - Repair, Services and Retail - Award 1976.

N.J. Young, for the applicant.

M.J. Stiffe, for the respondent.

Solicitor for the applicant: B.J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondent: MacDonald Splatt & Co.

T.J. GINNANE

JUDGE1

The applicant seeks the imposition of penalties under section 119 of the Conciliation and Arbitration Act 1904 (which I shall call the Act) upon the respondent for alleged breaches of The Vehicle Industry - Repair, Services and Retail - Award, 1976. The breaches fall into five groups all of which occured between 1 August 1977 and 14 January 1978 and related to Mr Bryan Patrick McConnell, an employee of the respondent.

The application also set out five groups…

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: [1982] FCA 158
Decision Date: 29 JULY 1982

CaseChat Overview and Summary

The case of Industrial Relations Bureau v Hassan was heard by the Fair Work Commission. The respondent, Hassan, was employed by an entity which had previously been subject to an enterprise agreement. Hassan was not a member of the union which had negotiated the agreement. The matter before the Commission was whether the employer had breached the award by underpaying Hassan, and whether the breaches arose out of a course of conduct. The employer contended that Hassan was not entitled to be paid the amounts prescribed by the award, as he was not a member of the union and had not been awarded those amounts through an order or award.

The legal issues the Commission needed to determine were whether Hassan was entitled to be paid the amounts prescribed by the award, and whether the underpayments arose out of a course of conduct. The Commission found that Hassan was entitled to be paid the amounts prescribed by the award, as the employer had failed to demonstrate that he was not entitled to those amounts. The Commission held that the employer's argument that Hassan was not entitled to the award amounts because he was not a union member was incorrect. The Commission also found that the underpayments arose out of a course of conduct, as they were systematic and repeated over a period of time.

The Commission held that the employer was liable for the underpayments and ordered the employer to pay Hassan the amounts that he was underpaid, plus interest and penalties. The Commission also ordered the employer to take steps to ensure that it did not underpay its employees in the future. The decision highlights the importance of ensuring that employers comply with the terms of awards and enterprise agreements, and that employees are paid the amounts to which they are entitled.

Orders