JENKINSON v Carter - [2010] FMCA 462

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JENKINSON v CARTER & ANOR

[2010] FMCA 462

INDUSTRIAL LAW – Entry onto premises – notice of entry to be delivered a whole 24 hours previous – physical violence against the Chief Operating Officer – calculation of penalty where violence involved.

Bankruptcy Act 1966 (Cth)
Building and Construction Industry Improvement Act 2004 (Cth)
Fair Work (Registered Organisations) Act 2002 (Cth)
Fair Work (Transitional Provisions and Consequential Amendments) Act2009 (Cth)
Workplace Health and Safety Act1995 (Qld)
Workplace Relations Act 1996 (Cth)

Daniels v Patti & Anor [2001] AIRC 77
John Holland Proprietary Limited v The Construction, Forestry, Mining and Energy Union (No. 2) [2009] FCA 865
Kelly v Fitzpatrick (2007) 166 IR 14
Wilson v Nesbitt [2009] FCA 1574

Applicant:

WAYNE JENKINSON

First Respondent:

WAYNE CARTER

Second Respondent:

CONSTRUCTION FORESTRY MINING AND ENERGY UNION

File Number:

BRG 13 of 2010

Judgment of:

Burnett FM

Hearing date:

8 June 2010

Date of Last Submission:

8 June 2010

Delivered at:

Brisbane

Delivered on:

8 June 2010

REPRESENTATION

Counsel for the Applicant:

Mr A. Horneman-Wren S.C.

Solicitors for the Applicant:

Norton Rose Australia

Counsel for the Respondents:

Mr T. Carmody S.C.

Solicitors for the Respondents:

Quinlan Miller & Treston Lawyers

ORDERS

A declaration that the first respondent has acted in contravention of section 7671 of the Workplace Relations Act;
A declaration that the first respondent has acted in contravention of section 7681 of the Workplace Relations Act;
Impose on the first respondent a penalty of $5500 in respect of the contravention of section 7671 of the Workplace Relations Act pursuant to section 769 and a penalty of $3300 in respect of the contravention of section 7681 of the Workplace Relations Act pursuant to the provisions of section 769.
That the penalties be paid to Commonwealth Australia.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 13 of 2010

WAYNE JENKINSON

Applicant

And

WAYNE CARTER

First Respondent

CONSTRUCTION FORESTRY MINING AND ENERGY UNION

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

At or about 2.50 pm on 10 December 2008, the first respondent, Wayne Carter, who was then an employee of the Construction, Forestry, Mining and Energy Union; and the second respondent, an officer of that entity, gave an entry notice by facsimile to Procast, which was a company trading as or carrying on business as Procast Australia Proprietary Limited, and carrying on business as a manufacturer of precast concrete panels and prestressed elements from premises at Johnson Road, Heathwood, Queensland. The notice forwarded by the first respondent, Carter, to Procast was a form of entry notice and purported to be in conformity with the requirements of section 378 of the Workplace Relations Act.
The notice stated that the first respondent would seek entry to the premises of Procast on 11 December 2008 and that the organisation in respect of which the permit was issued was the second respondent, that is the CFMEU. The purpose for Carter seeking entry to the premises was for 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.

Continue reading JENKINSON v Carter

Details

AGLC: JENKINSON v Carter [2010] FMCA 462
Case: [2010] FMCA 462
Decision Date: 8 June 2010

CaseChat Overview and Summary

Jenkinson brought a case against Carter, contesting actions taken by the first respondent which Jenkinson argued contravened sections 7671 and 7681 of the Workplace Relations Act. The case was heard in the Federal Court of Australia, where Jenkinson sought legal redress for the alleged violations.

The primary legal issues that the court was required to address involved interpreting and applying sections 7671 and 7681 of the Workplace Relations Act to determine whether the first respondent's actions constituted breaches of these provisions. The court needed to establish the nature of the actions taken by the first respondent and assess whether these actions aligned with the statutory requirements outlined in the Act.

In its judgment, the court found that the first respondent had indeed acted in contravention of both sections 7671 and 7681. The court meticulously reviewed the evidence and the legal framework, concluding that the actions taken were not in accordance with the stipulated requirements. Consequently, the court issued declarations affirming these contraventions and imposed financial penalties on the first respondent. The penalties were calculated in accordance with the relevant sections of the Act, with the court ordering the first respondent to pay $5500 for the contravention of section 7671 and $3300 for the contravention of section 7681. These penalties were to be paid to the Commonwealth of Australia.

The court's final orders included a declaration of the contraventions, the imposition of specific monetary penalties, and the direction that these penalties be remitted to Commonwealth Australia. This decision underscores the court's role in ensuring compliance with workplace legislation and the enforcement of penalties for non-compliance.

Orders

Orders of the court

A declaration that the first respondent has acted in contravention of section 7671 of the Workplace Relations Act;

A declaration that the first respondent has acted in contravention of section 7681 of the Workplace Relations Act;

Impose on the first respondent a penalty of $5500 in respect of the contravention of section 7671 of the Workplace Relations Act pursuant to section 769 and a penalty of $3300 in respect of the contravention of section 7681 of the Workplace Relations Act pursuant to the provisions of section 769.

That the penalties be paid to Commonwealth Australia.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.