FEDERAL COURT OF AUSTRALIA
Maranoa Close (Management) Pty Ltd v Gould [2011] FCA 234
Citation: Maranoa Close (Management) Pty Ltd v Gould [2011] FCA 234 Appeal from: Gould v Maranoa Close (Management) Pty Ltd, Magistrates Court of Victoria, 4 June 2010 and 10 June 2010 Parties: MARANOA CLOSE (MANAGEMENT) PTY LTD v RONALD JOHN GOULD and CHRISTINA ANNE GOULD File number: VID 581 of 2010 Judge: MARSHALL J Date of judgment: 17 March 2011 Catchwords: INDUSTRIAL LAW—Entitlement of employees to the benefit of provisions contained in an industrial award—Breaches of the award — Whether the judgment from the Magistrates Court of Victoria was correct in finding that the award applied to the employment of the employees—Whether the exercise of the Magistrate’s discretion in imposing a penalty of $45,000 on the employer was appropriate.
Held— The award did apply to the employment of the employees. No error found in the awarding of penalty.Legislation: Commonwealth Constitution s 122
Commonwealth Powers (Industrial Relations) Act 1996 (Vic) s 4 (2)
Health and Allied Services – Private Sector Victoria Consolidated Award 1998
Workplace Relations Act 1996 (Cth) ss 141, 493ACases cited: QR Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150
Re Grimshaw; ex parte Australian Telephone and Phonogram Officers Association (1986) 60 ALJR 588
R v Isaac; ex parte Transport Workers Union of Australia (1985) 159 CLR 323
Spalding v Can’t Tear ‘Em Pty Ltd [1999] FCA 1222Date of hearing: 2 March 2011 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 43 Counsel for the Appellant: Mr J D'Abaco Solicitor for the Appellant: McKean Park Counsel for the Respondents: Mr M Harding Solicitor for the Respondents: Maurice Blackburn
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 581 of 2010
ON APPEAL FROM THE MAGISTRATES COURT OF VICTORIA
BETWEEN: MARANOA CLOSE (MANAGEMENT) PTY LTD
AppellantAND: RONALD JOHN GOULD
First RespondentCHRISTINA ANNE GOULD
Second Respondent
JUDGE:
MARSHALL J
DATE OF ORDER:
17 MARCH 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The monies held in an interest bearing account, being $117,312.22 together with any interest accrued thereon, invested pursuant to the orders of 23 July 2010 and 20 August 2010 be released as soon as reasonably practicable to the solicitor for the respondents.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 581 of 2010
ON APPEAL FROM THE MAGISTRATES COURT OF VICTORIA
BETWEEN: MARANOA CLOSE (MANAGEMENT) PTY LTD
AppellantAND: RONALD JOHN GOULD
First RespondentCHRISTINA ANNE GOULD
Second Respondent
JUDGE:
MARSHALL J
DATE:
17 MARCH 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This appeal concerns the entitlement of two employees to the benefit of provisions contained in an…
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- Case
- [2011] FCA 234
- Decision Date
CaseChat Overview and Summary
The court considered whether the award applied to the employment of the employees and found that it did. The court held that the employees were appropriately classified under the heading of "all other employees not elsewhere provided within the jurisdiction of the award". The court also considered whether the employees were eligible for membership of the Union and found that they were. The court held that the award applied to the employees from July 2003 until 1 January 2005. The court also considered whether the penalty imposed was appropriate and held that it was within the permissible range of penalties. The court found that the penalty of $45,000 was not unreasonable and was far from unjust.
The court dismissed the appeal and ordered that the monies held in an interest-bearing account, being $117,312.22 together with any interest accrued thereon, be released as soon as reasonably practicable to the solicitor for the respondents. The court held that the appeal was misconceived and that there was no error in the findings of the Magistrates Court. The court found that the award applied to the employment of the employees and that the penalty imposed was appropriate. The court also held that the employees were eligible for membership of the Union and that the award applied to them from July 2003 until 1 January 2005.
Orders
Orders of the court
1. The appeal is dismissed.
2. The monies held in an interest bearing account, being $117,312.22 together with any interest accrued thereon, invested pursuant to the orders of 23 July 2010 and 20 August 2010 be released as soon as reasonably practicable to the solicitor for the respondents.
Note:
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
Ratio Decidendi
Legal Principle Established
On appeal that finding was challenged. The challenge is misconceived. Having regard to the low skilled nature of the vast majority of the duties of a resident manager at Maranoa, it was appropriate to consider the Goulds as falling within wage/skill group 1. Although the position of resident manager is not referred to in the list of classifications, the provision for “all other employees not elsewhere provided within the jurisdiction of the award” fills this gap. The work of a resident manager at a retirement village is unquestionably covered by the common rule declaration. Without doubt, as at 1 January 2005, the common rule declaration applied so that the Goulds were entitled to the benefit of the award. As the failure to comply with the award commenced in July 2003, it is now necessary to consider the applicability of the award from that time until 1 January 2005.The Period before the Common Rule Declaration For the award to apply to the period of employment of the Goulds, from July 2003 to 31 December 2004, the Court must be satisfied that the Goulds were employed in a classification covered by the award. That is the practical effect of cl. 5.2.3 of the award. For the reasons expressed at [20] and [21] above in determining whether his Honour assessed the employment of the Goulds as coming within the General Services Streams (wages/skill group 1), I consider the Goulds were appropriately classified under the heading of “all other employees not elsewhere provided within the jurisdiction of the award”. “All others” classifications are frequently used in industrial awards and have been so used for decades. Many examples are set out in my judgment in Spalding v Can’t Tear ‘Em Pty Ltd [1999] FCA 1222. I adhere to the views expressed there, especially at [25] to [34], despite the contrary view of Dowsett J. Justice Wilcox considered that the relevant employee was employed in the relevant industry and together with my judgment, supported the majority order. Consistently with the approach of Wilcox J, I have already found at [19] that the Goulds were employed in the industry covered by cl. 1 of the declaration. That is the materially identical industry as referred to in cl. 5 of the award.The Eligibility Rule However, as counsel for Maranoa points out, the award cannot validly extend to the Goulds if they are not eligible for membership of the Union. The award is binding (as set out at cl. 5.1.1) on the Union, its members and those eligible to be members. It is not binding (in its pre-common rule form) on people who are ineligible to be members of the Union. The relevant portion of the eligibility rule of the Union is rule 3A (e). That rule, so far as is material provides:In the [State] of Victoria…in or in connection with the provision of medical, paramedical and/or nursing care for aged persons in…homes (including dwellings) and work ancillary thereto. The work performed by the Goulds was performed in homes which were dwellings or at the very least the work was performed in connection with dwellings. The Goulds did not provide medical, paramedical or nursing services but, as required, they enabled residents at the retirement village to access such services. In so doing, they performed work in connection with and/or ancillary to the provision of such services. They were eligible to join the Union and become members.