Louis Kyriacou v T and a Winter Enterprises Pty Ltd

[1995] IRCA 396

CATCHWORDS

INDUSTRIAL LAW - UNION MEMBERSHIP - dismissal of employee - prosecution against employer - penalty - factors relevant to penalty.

Industrial Relations Act 1988, s334
Industrial Relations Regulations ss 131A, 132A

Bowling v General Motors-Holdens Pty Ltd (1975) 8 ALR 197, 210
King v Hickson’s Timber Impregnation Co. (Aust.) Pty. Ltd. (1972) 20 FLR 353, 354
Sheridan v Central District Ambulance Committee (No 2) (1927) 26 AR (NSW) 460, 473
Australian Workers Union v Mullins (1938) 23 Qd IG 482

No VI 5008 of 1994
No VI 5009 of 1994
No VI 5021 of 1994

LOUIS KYRIACOU v T & A WINTER ENTERPRISES PTY LTD

MARSHALL J
MELBOURNE
17 AUGUST 1995

IN THE INDUSTRIAL RELATIONS COURT            )  
  )  )  

OF AUSTRALIA  )  

)  No. VI 5008 of 1994  

VICTORIA DISTRICT REGISTRY  )  

BETWEEN:  LOUIS KYRIACOU

Prosecutor

AND:  T & A WINTER ENTERPRISES PTY LTD

Defendant

JUDGE:     Marshall J

PLACE:     Melbourne

DATE:       17 August 1995

ORDER

THE COURT ORDERS THAT:

1.The defendant, T & A Winter Enterprises Pty Ltd is convicted of an offence against Regulation 132A of the Industrial Relations Regulations in that it failed to issue Peter Soxsmith with a written pay slip relating to payment by it to Peter Soxsmith for remuneration for work performed on 13 November 1993 within one day of such payment being made to Peter Soxsmith.      

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT            )  
  )  )  

OF AUSTRALIA  )  

)  No. VI 5009 of 1994  

VICTORIA DISTRICT REGISTRY  )  

BETWEEN:  LOUIS KYRIACOU

Prosecutor

AND:  T & A WINTER ENTERPRISES PTY LTD

Defendant

JUDGE:     Marshall J

PLACE:     Melbourne

DATE:       17 August 1995

ORDER

THE COURT ORDERS THAT:

1.The defendant, T & A Winter Enterprises Pty Ltd is convicted of an offence against Regulation 131A(1) of the Industrial Relations Regulations (“the Regulations”) in that it failed to make or cause to be made a record in accordance with Part 9A of the Regulations in relation to work performed for it by Peter Soxsmith on 16 October 1993.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT            )  
  )  )  

OF AUSTRALIA  )  

)  No. VI 5021 of 1994  

VICTORIA DISTRICT REGISTRY  )  

BETWEEN:  LOUIS KYRIACOU

Prosecutor

AND:  T & A WINTER ENTERPRISES PTY LTD

Defendant

JUDGE:     Marshall J

PLACE:     Melbourne

DATE:       17 August 1995

ORDER

THE COURT ORDERS THAT:

1.The defendant, T & A Winter Enterprises Pty Ltd is convicted of an offence against s334 of the Industrial Relations Act 1988 (“the Act”) in that on 17 December 1993 it did dismiss Peter Soxsmith from his employment, because Peter Soxsmith:

(a)was a member of an organisation of employees registered under the      Act; and

(b)being a member of an organisation that was seeking better      industrial conditions was dissatisfied with his conditions.

2.The defendant is sentenced to pay a fine of $500.00 in respect of the offence, on or before 4 pm, Friday, 22 September 1995.

NOTE:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT            )  
  )  )  

OF AUSTRALIA  )  

)  No. VI 5008 of 1994  

VICTORIA DISTRICT REGISTRY  )   No. VI 5009 of 1994   No. VI 5021 of 1994  

BETWEEN:  LOUIS KYRIACOU

Prosecutor

AND:  T & A WINTER ENTERPRISES PTY LTD

Defendant

JUDGE:     Marshall J

PLACE:     Melbourne

DATE:      17 August 1995

EX TEMPORE REASONS FOR JUDGMENT
AND REVISED FROM THE TRANSCRIPT

These matters are prosecutions under the Industrial Relations Act 1988 (“the Act”) and the Industrial Relations Regulations (“the Regulations”). They were heard simultaneously with eight other prosecutions, each of which has been withdrawn.

I was informed by counsel on the second day of hearing that the defendant pleaded guilty to the remaining charges, being the ones the subject of this decision in relation to penalty.

Having regard to an undertaking by the defendant’s counsel that the defendant would contribute $2,500.00 towards the prosecutor’s legal expenses, I was asked not to impose any penalty at all upon the defendant in relation to the three charges on which I have convicted the defendant. I have decided, in the context of the defendant’s payment to the prosecutor, to impose no penalty upon the defendant in VI 5008 and VI 5009 of 1994 which concern breaches of Regulations 132A and 131A respectively of the Regulations regarding certain deficiencies in the defendant’s record keeping processes.

Matter VI 5021 of 1994 is a prosecution under s334 of the Act. The Court views breaches of that section very seriously. The viability of organisations underpins the whole system of conciliation and arbitration which the Act provides. The Court should be very wary about giving any succour to anyone who seeks to deny the paramountcy of that role.

Notwithstanding the submissions of counsel for the defendant that I have only heard the untested evidence of one witness before the guilty plea, I have evidence before me of what appears to be a stark and blatant breach of s334 of the Act.

The Court’s predecessors have generally been reluctant to impose maximum penalties on defendants for breach of predecessor provisions to s334 of the Act, notwithstanding the manifestly inadequate maximum penalty allowable. However, in Bowling v General Motors-Holdens Pty Ltd (1975) 8 ALR 197, 210, their Honours Smithers and Evatt JJ said:

“The immediate object of Parliament in enacting s 5 can clearly be seen to be to remove fear of adverse action by an employer against an employee taking union office, and performing the functions of that office.

There are many cases in which even the maximum pecuniary penalty of $400 provided for in the section would do little to achieve this objective ....”

In the context of this case, employees should not be fearful of joining a union and the maximum penalty of $1,000.00 may be seen to do little to reduce such fear.  However, notwithstanding the gravity of the offence, in the circumstances I only propose to order a penalty of $500.00 in this case having regard to the following factors:-

1.the defendant’s contribution of $2,500 to the prosecutor’s legal costs, thereby indicating a repentant attitude, see King v Hickson’s Timber Impregnation Co. (Aust.) Pty. Ltd. (1972) 20 FLR 353, 354;

2.the prosecutor did not seek that the maximum penalty be ordered, see Sheridan v Central District Ambulance Committee (No 2) (1927) 26 AR (NSW) 460, 473;

3.no prior convictions were alleged, see Australian Workers Union v Mullins (1938) 23 Qd IG 482.

It should be noted that no order was sought by the prosecutor under s334(7) of the Act.

I order that the defendant be sentenced to a fine of $500.00 in relation to the breach of s334(1) of the Act. I grant a stay of 30 days for the payment of the penalty by the defendant.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.

Associate:

Date:  17 August 1995

Counsel for the Prosecutor:              Mr M. Bromberg 

Solicitor for the Prosecutor:              Ryan Carlisle Thomas

Counsel for the Defendant:              Mr R. Squirrell     

Solicitor for the Defendant:              Phillips Fox          

Date of hearing:  16 & 17 August 1995

Date of judgment:  17 August 1995