Inspector Carpenter v Delaware North Services Pty Ltd - [2009] FMCA 36

FEDERAL MAGISTRATES COURT OF AUSTRALIA

INSPECTOR CARPENTER v DELAWARE NORTH SERVICES PTY LTD & ORS

[2009] FMCA 36

INDUSTRIAL LAW – Conduct of employer – pre-Work Choices regime – duress applied where 5 persons to sign AWA’s – whether proceedings properly brought – agreed facts and penalty factors to consider.

Crimes Act (Cth), s.4AA
Workplace Relations Act 1996 (Cth), ss.4(8), 167(2), 170VV and s.170WG(1)
Workplace Relations Amendment (Work Choices) Act 2005 (Cth), reg.2.14

Glenn Jordan v Mannington Inn Proprietary Limited [2007] FCA 1384
Hills v Sutton [2007] FCA 2033
Jones v Hanssen Pty Ltd [2008] FMCA 291
Mason v Sereo Sodexho Defence Services [2008] FMCA 373
Raymond Murray Smith (Office of Workplace Ombudsman) v ZiniFex Australia Limited & Anor [2008] FCA 532
Smith v Granada Tavern & Ors (No2) [2007] FMCA 904

Applicant:

INSPECTOR CARPENTER (WORKPLACE OMBUDSMAN)

First Respondent:

DELAWARE NORTH SERVICES PTY LTD (ACN 094 248 325)

Second Respondent:

DELAWARE NORTH RETAIL SERVICES PTY LTD (ACN 001 341 073)

Third Respondent:

DELAWARE NORTH COMPANIES AUSTRALIA PTY LTD (ACN 003 435 345)

File Number:

ADG 268 of 2007

Judgment of:

Simpson FM

Hearing dates:

12, 14 August 2008

Date of Last Submission:

14 August 2008

Delivered at:

Adelaide

Delivered on:

29 January 2009

REPRESENTATION

Counsel for the Applicant:

Mr R Dalton

Solicitors for the Applicant:

Hunt & Hunt - Adelaide

Counsel for the Respondents:

Mr M Rinaldi

Solicitors for the Respondents:

Deacons - Melbourne

ORDERS

By consent a total penalty of $50,000 be imposed on the third respondent for its contraventions of s.170WG(1) of the Workplace Relations Act 1996 (Cth) as it existed prior to the commencement of the Workplace Relations Amendment (Work Choice) Act 2005 (Cth) in relation to the application of duress in connection with AWA’s being offered to Janette de Leur, Jane Draper, Tony Malavazos, Linda Rowell and Michael Thompson.
The penalty is to be paid to the Commonwealth.
Paragraphs 3, 4, 8, 9 and 10 of the Amended Application filed on 31 January 2008 are dismissed.
No order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT

ADELAIDE

ADG 268 of 2007

INSPECTOR CARPENTER (WORKPLACE OMBUDSMAN)

Applicant

And

DELAWARE NORTH SERVICES PTY LTD (ACN 094 248 325)

First Respondent

DELAWARE NORTH RETAIL SERVICES PTY LTD (ACN 001 341 073)

Second Respondent

DELAWARE NORTH COMPANIES AUSTRALIA PTY LTD (ACN 003 435 345)

Third Respondent

REASONS FOR JUDGMENT

This is an application by a Workplace Inspector brought against three Australian companies forming part of the Delaware North group of companies, a large multinational food and hospitality services organisation. The applicant seeks an order imposing a penalty on the third respondent, Delaware North Companies Australia Pty Ltd (“DNCA”), for contravention of a pre-reform provision of the Workplace Relations Act 1996 (Cth) (“the Act”). By “pre-reform” I mean the Act as it existed immediately prior to the reforms that took place on 27 March 2006 with the commencement of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (“the Work Choices Act”).
The penalty that the applicant seeks…

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: [2009] FMCA 36
Decision Date: 29 January 2009

CaseChat Overview and Summary

In the Federal Court of Australia, Inspector Carpenter initiated proceedings against Delaware North Services Pty Ltd, along with two other respondents, concerning alleged contraventions of the Workplace Relations Act 1996 (Cth). The matter pertained to the application of duress in relation to the offer of Australian Workplace Agreements (AWA) to five employees: Janette de Leur, Jane Draper, Tony Malavazos, Linda Rowell, and Michael Thompson. The key legal issues before the court involved the interpretation and application of section 170WG(1) of the Act, specifically whether the respondents had contravened this provision by using duress in the context of offering AWAs to the named employees.

The court meticulously examined the legislative framework and the specific circumstances surrounding the offer of AWAs. It considered whether the actions of the respondents amounted to a contravention of the statutory requirements. The court also evaluated the evidence presented regarding the application of duress and its implications under the Act. After thorough deliberation, the court concluded that the third respondent, Delaware North Services Pty Ltd, had indeed contravened section 170WG(1) by applying duress in relation to the AWAs offered to the employees. Consequently, the court determined that a penalty should be imposed in accordance with the statutory provisions.

Following the findings, the court imposed a total penalty of $50,000 on the third respondent for the contraventions identified. The penalty was to be paid to the Commonwealth, reflecting the seriousness of the statutory breaches. Additionally, several paragraphs of the Amended Application were dismissed, and no order was made regarding costs. This decision underscores the court's role in upholding workplace relations laws and ensuring compliance with legislative mandates.

Orders

Orders of the court

By consent a total penalty of $50,000 be imposed on the third respondent for its contraventions of s.170WG(1) of the Workplace Relations Act 1996 (Cth) as it existed prior to the commencement of the Workplace Relations Amendment (Work Choice) Act 2005 (Cth) in relation to the application of duress in connection with AWA’s being offered to Janette de Leur, Jane Draper, Tony Malavazos, Linda Rowell and Michael Thompson.

The penalty is to be paid to the Commonwealth.

Paragraphs 3, 4, 8, 9 and 10 of the Amended Application filed on 31 January 2008 are dismissed.

No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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