Longmire v Murray Clarke Enterprises Pty Ltd - [2008] FMCA 1028

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LONGMIRE v MURRAY CLARKE ENTERPRISES PTY LTD & ANOR

[2008] FMCA 1028

INDUSTRIAL LAW – Where breaches of award and Workplace Relations Act admitted – penalty – whether multiple breaches should be considered single course of conduct – application of totality principle.

Workplace Relations Act 1996 (Cth) ss.178 (repealed), 719, 728
Workplace Relations Amendment (Work Choices) Act 2005
Motels Accommodation and Resorts Award 1998

Australasian Meat Industry Employees’ Union v Meneling Station Pty Ltd (1987) 16 IR 245
Australian Competition and Consumer Commission v ABB Transmission & Distribution Limited (2001) ATPR 41-815
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36
Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 3) (2007) 244 ALR 673
Australian Liquor Hospitality & Miscellaneous Workers Union v Broadlex Cleaning Australia Pty Ltd (1997) 78 IR 464
Australian Ophthalmic Supplies Pty Limited v McAlary-Smith (2008) 156 FCR 291
Clothing and Allied Trade Unions v Snugglerite Industries Pty Ltd (1990) 34 IR 124
Canturi and Another v Sita Coaches Pty Ltd and Another (2002) 116 FCR 276
Cotis v Pow Juice Pty Ltd [2007] FMCA 140
Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228
Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216
Jarvis v Imposte Pty Ltd (2007) 215 FLR 1
Johnson v The Queen (2004) 78 ALJR 616
Kelly v Fitzpatrick (2007) 166 IR 14
Markarian v The Queen (2005) 228 CLR 357
Mason v Harrington Corporation Pty Limited [2007] FMCA 7
Masters v Highway One Transport Pty Ltd (1990) 33 IR 1
McIver v Healey [2008] FCA 425
Mill v The Queen (1988) 166 CLR 59
Mornington Inn Pty Ltd v Jordan (2008) 171 IR 455
National Tertiary Education Union v Central Queensland University [2008] FCA 481
Pearce v The Queen (1998) 194 CLR 610
Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241
Smith v Granada Tavern & Ors (No. 3) [2007] FMCA 1548
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550
Victoria University of Technology v Australian Education Union (1999) 91 IR 96

Applicant:

INSPECTOR MATTHEW LONGMIRE

First Respondent:

MURRAY CLARKE ENTERPRISES PTY LTD

Second Respondent:

MURRAY CLARKE

File Number:

SYG 745 of 2008

Judgment of:

Barnes FM

Hearing date:

29 May 2008

Delivered at:

Sydney

Delivered on:

31 July 2008

REPRESENTATION

Solicitors for the Applicant:

Blake Dawson

Respondents:

In person

ORDERS

The first respondent pay the Commonwealth a penalty of $20,000 for breach of clauses 13.2.2(b) and 17.2 of the Motels Accommodation and Resorts Award 1998 between 1 July 2004 and 9 August 2006.
The second respondent pay the Commonwealth a penalty of $2,000 for breach of clauses 13.2.2(b) and 17.2 of the Motels Accommodation and Resorts Award 1998 between 1 July 2004 and 9 August 2006.
No penalty be imposed on either respondent in respect of the breaches of clauses 13.2.2(a), 13.2.2(c) and 13.5.1 of the Award or…

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: [2008] FMCA 1028
Decision Date: 31 July 2008

CaseChat Overview and Summary

Longmire v Murray Clarke Enterprises Pty Ltd involved the Commonwealth as the plaintiff, suing Murray Clarke Enterprises Pty Ltd and two individuals for breaches of employment awards. The dispute centred on alleged underpayments of wages and penalties for contraventions of the Motels Accommodation and Resorts Award 1998. The Fair Work Commission heard the case and was tasked with determining whether the respondents had breached the award and, if so, what penalties should be imposed.

The court had to decide several key legal issues, including whether the respondents had indeed breached the award by underpaying their employees. The specific clauses of the award under contention were 13.2.2(b), 13.2.2(c), 13.5.1, as well as sections 182 and 185 of the Workplace Relations Act 1996. Additionally, the court had to assess the appropriate penalties for these breaches, if any, under the relevant legislative provisions.

In reaching its decision, the court meticulously reviewed the evidence and arguments presented by both sides. It found that there were breaches of clauses 13.2.2(b) and 17.2 of the award by the first and second respondents, respectively. However, no breaches were found concerning clauses 13.2.2(a), 13.2.2(c), 13.5.1 of the award, nor the breaches of sections 182 and 185 of the Workplace Relations Act 1996. Consequently, the court imposed penalties of $20,000 on the first respondent and $2,000 on the second respondent for the identified breaches.

The final orders mandated that the first respondent pay a penalty of $20,000, the second respondent pay $2,000, and that no penalties be imposed for the other breaches. Both penalties were to be paid within six months from the date of the decision.

Orders

Orders of the court

The first respondent pay the Commonwealth a penalty of $20,000 for breach of clauses 13.2.2(b) and 17.2 of the Motels Accommodation and Resorts Award 1998 between 1 July 2004 and 9 August 2006.

The second respondent pay the Commonwealth a penalty of $2,000 for breach of clauses 13.2.2(b) and 17.2 of the Motels Accommodation and Resorts Award 1998 between 1 July 2004 and 9 August 2006.

No penalty be imposed on either respondent in respect of the breaches of clauses 13.2.2(a), 13.2.2(c) and 13.5.1 of the Award or the breaches of sections 182 and 185 of the Workplace Relations Act 1996.

Payment of the penalties is to be made within six calendar months of today’s date.

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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