Kidd, Jack Gordon v Savage River Mines

[1985] FCA 189

Re: JACK GORDON KIDD
And: SAVAGE RIVER MINES
N.S.W. No. 3 of 1984
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.

CATCHWORDS

Industrial Law - breach of award - penalty - whether deprivation of annual leave an underpayment.

Conciliation and Arbitration Act 1904 s. 119(1D)(a)(i), s. 119(3).

HEARING

MELBOURNE
#DATE 4:3:1985

JUDGE1

In my reasons for judgment delivered on 21st December 1984, I found that a breach or non-observance of the relevant award had occurred from about 3rd June 1983 until 14th June 1983, by the respondent in standing down its employee, Mr. Bugg. I have now heard submissions on the question of penalty and on what other consequential orders might be made.

1. The first matter to be considered is the question of penalty. In my view, I should take the view that this is a serious breach of the award. The evidence does disclose that no real attempt was made by the management of the respondent to consider the question whether useful employment was available to Mr. Bugg, or to any other members of its maintenance staff, during the period of the stand down in June 1983. In that sense, it can be said that the respondent has failed to address itself to its obligations under the award; it has chosen to ignore its obligations and simply to stand down all of its employees. That kind of attitude, in my view, justifies the imposition of a reasonably severe penalty upon the respondent. The maximum penalty permitted by s. 119(1D)(a)(i) of the Conciliation and Arbitration Act 1904 in a case of this kind is $1,000.00. In the circumstances, it seems to me appropriate that a penalty of $750.00 should be imposed.

2. Mr. Shaw, on behalf of the applicant, has requested an order under s. 120 of the Act that the penalty be paid to the organization of which the applicant is National Secretary. That order has not been opposed by Dr. Jessup, on behalf of the respondent, and appears to me to be an appropriate order in the circumstances.

3. The final matter for consideration is whether an order should be made under s. 119(3) of the Act. That provision only operates where it appears to the court that an employee has not been paid an amount to which he or she is entitled under an award. The provision then empowers the court to order the employer to pay to the employee the amount of the underpayment.

4. The circumstances of this case, as outlined in my reasons for judgment given on 21st December 1984, were that Mr. Bugg elected to take annual leave for the period of the stand down. He would have been entitled to such annual leave if the stand down had been proper. As a result of this election, he has been paid his ordinary wage rate in respect of the stand down period, plus an annual leave loading. The result of that payment appears to me to make it impossible for the court to find that Mr. Bugg has not been paid an amount to which he is entitled. Mr. Shaw conceded that it is highly likely that the wage rate plus the annual leave loading amounted to more than Mr. Bugg would have been entitled to if he had simply endured the wrongful stand down. The result appears to be that Mr. Bugg's only remaining entitlement was to a period of leave, of which he had been effectively deprived by his election to take annual leave for the period of the stand down.

5. No order under s. 119(3) can be made in respect of such a period of leave because it would not amount to an underpayment or an amount to which the employee is entitled. Accordingly, I refuse to make any order under s. 119(3).

6. The order of the Court is as follows:
   
   

(1) That a penalty of $750.00 be imposed on the respondent for breach or non-observance of the award.

(2) That the whole of the penalty be paid to the Amalgamated Metals Foundry and Shipwrights Union.