Maranoa Close (Management) Pty Ltd v Gould

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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, 493A

Cases 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 1222

Date 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
Appellant

AND:

RONALD JOHN GOULD
First Respondent

CHRISTINA 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
Appellant

AND:

RONALD JOHN GOULD
First Respondent

CHRISTINA ANNE GOULD
Second Respondent

JUDGE:

MARSHALL J

DATE:

17 MARCH 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This appeal concerns the entitlement of two employees to the benefit of provisions contained in an…

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Details
Case
[2011] FCA 234
Decision Date

CaseChat Overview and Summary

Maranoa Close (Management) Pty Ltd appealed against a decision of the Magistrates Court of Victoria which found that the award applied to the employment of the employees and that the penalty of $45,000 imposed on the employer was appropriate. The Court of Appeal was required to determine whether the award applied to the employment of the employees and whether the penalty imposed was appropriate. The Court found that the award did apply to the employment of the employees and that the penalty was within the permissible range of penalties. The Court dismissed the appeal and ordered that the monies held in an interest-bearing account be released to the respondents.

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

As referred to at [38] above, his Honour had some obvious reservations about Maranoa’s conduct. In any event, the tenor of each of his Honour’s judgments was that Maranoa failed to properly investigate the extent of its obligations to its employees, the Goulds, and failed to comply with its obligations to them for a considerable period. Having so found, it was not necessary for his Honour to specifically advert to a submission about a genuine and reasonable belief held by Maranoa when his Honour had specifically cast doubt on the genuineness and reasonableness of that belief.Conclusion on penalty His Honour did not fail to advert to any specific matter which he was obliged to refer to in considering his assessment of the appropriate penalty. Having regard to the long period of the breaches involved, his Honour’s penalty was well within the permissible range of possible penalties. The $45,000 penalty was not unreasonable. It was far from unjust. Counsel for Maranoa did not otherwise cavil with the general approach adopted by his Honour in determining the quantum of the penalty.Order Having regard to the foregoing it follows that the appeal must be dismissed. Justice Middleton ordered on 23 July 2010 that the appellant pay into the Court the amount of $117,312.22 by 30 July 2010. On 20 August 2010, the Court ordered by consent that the monies paid into Court by the appellant on 29 July 2010 be held in an interest bearing account until further order. As a consequence of the appeal being dismissed, the monies paid into the interest bearing account must be released as soon as reasonably practicable to the solicitor for the respondents.

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.