Leemon v Treasure Books Australia Pty Ltd
[1997] FCA 879
•15 AUGUST 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - ENFORCEMENT OF AWARD - whether matter was subject of an AWARD as a result of CONSENT ARBITRATION - whether service effected - whether compliance with Award - interest upon unpaid amount -
Workplace Relations Act 1996 ss170EC, 170ECB
Federal Court Rules Or 35 r 8
LEEMON & ASU -V- TREASURE BOOKS AUST. PTY LTD
VI 1392 of 1997
PARKINSON JR
MELBOURNE
15 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) VI 1392 of 1997
)
GENERAL DIVISION )
B E T W E E N: LEEMON
Applicant
AND: THE AUSTRALIAN SERVICES UNION
Applicant
AND: TREASURE BOOKS AUST. PTY LTD
Respondent
JUDICIAL REGISTRAR : PARKINSON
PLACE : MELBOURNE
DATED : 15 AUGUST 1997
MINUTES OF ORDER
THE COURT DECLARES AND ORDERS THAT:
The respondent is in breach of an agreement made by it pursuant to Section 170EC of the Workplace Relations Act 1996.
Pursuant to Subsection 170ECB(1) of the Workplace Relations Act, 1996, the respondent pay to the applicant the sum of $11,667.00.
The respondent pay to the applicant the sum of $452.62 being interest pursuant to Order 35 Rule 8 of the Federal Court Rules.
Time for compliance with the Orders 3 & 4 herein is 7 days from the date of this Order.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) VI 1392 of 1997
)
GENERAL DIVISION )
B E T W E E N: LEEMON
Applicant
AND: THE AUSTRALIAN SERVICES UNION
Applicant
AND: TREASURE BOOKS AUST. PTY LTD
Respondent
JUDICIAL REGISTRAR : PARKINSON
PLACE : MELBOURNE
DATED : 15 AUGUST 1997
REASONS FOR JUDGMENT
(delivered ex-tempore)
This is a decision in relation to an application made pursuant to Section 170ECB of the Workplace Relations Act 1996 (‘the Act’). The application before the Court is for the enforcement of an agreement made between the parties to comply with the terms of an Award made in a Consent Arbitration pursuant to s170EC(1) of the Act. There was no appearance for the respondent at the hearing of this matter. The applicant’s counsel tendered the extract of certified mail receipt identifying the service of the notice of proceedings, together with the relevant documents upon the respondent. On 6 August, 1997, I adjourned the proceedings, for the purpose of the provision of satisfactory evidence of service to be provided by the applicant.
I am satisfied, having heard Ms Duffy for the applicant and having regard to the affidavit, (Exhibit R3), that service was effected by the certified mail delivery of the documents at the registered office and or principal place of business of the respondent. I am further satisfied, having heard Ms. Duffy, that steps have been taken to bring the document to the notice of the respondent and consequently the Order of the Court, pursuant to Or. 7 r10 of the Federal Court Rules, will be that the documents which were the subject of the certified mail delivery to the known address of the respondent be taken to have been served upon the respondent for the purposes of the requirements of Or 7 r21.
The agreement sought to be enforced is an agreement to comply with an Award of the Australian Industrial Relations Commission, (‘the Commission’), made pursuant to a Consent Arbitration. The Award, made by a Full Bench of the Commission, upon appeal from a single member of the Commission, on 12 May, 1997, (Print P0788), was in the following terms:
1.The applicant (I. H. Leemon) shall be paid $11,667 by the respondent (Treasure Books Australia Pty Ltd).
2.The payment specified in paragraph 1 above shall be made to the applicant within seven days of the date of this award.
I am satisfied on the evidence of Ms Leemon that the respondent has not complied with the terms of the Award and that the applicant has received no payment in the terms set out therein. I am satisfied that the matter was the subject of an Award as a result of a Consent Arbitration conducted by the Australian Industrial Relations Commission, by consent of the parties. The agreement to proceed to Consent Arbitration is Exhibit A1 in these proceedings. An Award of the Full Bench of the Commission is specifically addressed by s170ECB(3) of the Act. I am satisfied that there has been a failure of the respondent to comply with the terms of that Consent Arbitration.
The applicant seeks an Order of the Court pursuant to s170ECB of the Act. In that respect an order in the full amount of the Award of the Commission is a necessary action.
The Court is enabled by ss170ECB(1) to take such action as the Court considers necessary to enforce the terms of the agreement of the parties to comply with the terms of an Award made in a consent arbitration of a matter.
One of the terms of the agreement is to comply with the orders made subject to any appeal rights which may exist. In my view, in order to give effect to the agreement between the parties, the loss of the use of the monies arising from the Award ought be addressed. The applicant is entitled to an order for interest, between the operative date of the order of the Full Bench of the Commission and the date of this decision, on the unpaid amount and that order is made pursuant to Or. 35 r8 of the Federal Court Rules.
The Order of the Court shall be;
The respondent is in breach of an agreement made by it pursuant to Section 170EC of the Workplace Relations Act 1996.
Pursuant to Subsection 170ECB(1) of the Workplace Relations Act 1996 the respondent pay to the applicant the sum of $ 11,667.00.
The respondent pay to the applicant the sum of $452.62 being interest pursuant to Order 35 Rule 8 of the Federal Court Rules.
Time for compliance with the Orders 3 & 4 herein is 7 days from the date of this Order.
I certify that the preceding three (3) pages
are a true copy of the Reasons for Judgment of
Judicial Registrar Parkinson.
Associate :
Dated : 15 August 1997
APPEARANCES
Counsel for the Applicant : Ms. A. Duffy
Representative for the Applicant : The Australian Services Union
No appearance for the Respondent
Dates of hearing : 6 & 15 August 1997
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