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Maslen v Core Drilling Services Pty Ltd & Anor (No.2)

Maslen v Core Drilling Services Pty Ltd & Anor (No.2)

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Case Copied 16 February 2015 43 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

MASLEN v CORE DRILLING SERVICES PTY LTD & ANOR (No.2)

[2015] FCCA 290

Catchwords:
INDUSTRIAL LAW – Penalty proceedings – contraventions of Fair Work Act 2009 (Cth) – factors relevant to consideration of penalty.

COSTS – Industrial law proceedings – whether proceedings instituted without reasonable cause – whether unreasonable act or omission.

Legislation:

Crimes Act 1914 (Cth), s.4AA

Fair Work Act 2009 (Cth), Part 3-1, ss.3, 44, 45, 117(2) and (3), 124(1) and (2)(a), (b) and (f), 125(1), 134(1), 323(1), 340, 360, 361, 369, 539, 546(2), 547 550, 557(1) and (2), 570, 611

Federal Circuit Court Rules 2001 (Cth), rr.7.01, 21.02(1)(c), Sch.1
Industrial Relations Act 1988 (Cth), s.256
Mining Industry Award 2010 (WA), cll.11.1, 13.1(a), 15
Truck Act 1899 (WA)
Workplace Relations Act 1996 (Cth)

Australasian Meat Industry Employees’ Union v Australia Meat Holdings (1998) 82 IR 76
Australian Competition and Consumer Commission v ABB Transmission & Distribution Ltd [2001] FCA 383
Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No.2) [2007] FCA 11

Australian Liquor, Hospitality & Miscellaneous Workers Union v Broadlex Cleaning Australia Pty Ltd (1997) 78 IR 464

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8
Australian Workers Union v Leighton Contractors Pty Limited (No.2) [2013] FCAFC 23
Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union v Thornton Engineering Australia Pty Ltd (2009) 191 IR 315; [2009] FCA 1584
Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32
Bristow v City Petroleum [1987] 1 WLR 529
Byrne & Anor v Australian Airlines Limited (1995) 185 CLR 410
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No.2) [2010] FCA 652
Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Ltd (No.2) 2013 FCA 362
Construction, Forestry, Mining and Energy Union v BMD Constructions Pty Ltd [2013] FCA 41
Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; [2008] FCAFC 143
Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No.3) [2012] FCA 697
CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228; [2001] FCA 1364
Director Of The Fair Work Building Industry Inspectorate v Zion Tiling Pty Ltd & Anor (No.2) [2013] FCCA 1288
Fair Work Ombudsman v ACN 146 435 118 Pty Ltd & Anor (No.2) [2013] FCCA 1270
Fair Work Ombudsman v Australian Shooting Academy Pty Ltd [2011] FCA 1064
Fair Work Ombudsman v Maclean Bay Pty Ltd (No.2) [2012] FCA 557
Fair Work Ombudsman v MMP Management Services Pty Ltd (2012) 219 IR 397; [2012] FMCA 207
Fair Work Ombudsman v Offshore Marine Services Pty Ltd (2012) 219 IR 435; [2012] FCA 498
Finance Sector Union v Commonwealth Bank of Australia & Anor (2005) 147 IR 462; [2005] FCA…

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: [2015] FCCA 290
Decision Date: 16 February 2015

CaseChat Overview and Summary

Maslen v Core Drilling Services Pty Ltd & Anor (No.2) concerned penalty proceedings brought by the applicant, Maslen, against the respondents, Core Drilling Services Pty Ltd and another, for alleged contraventions of the *Fair Work Act 2009* (Cth). The proceedings were heard in the Federal Court of Australia before Justice Lucev.

The court was required to determine whether the respondents had contravened specific provisions of the *Fair Work Act 2009* (Cth) and, if so, to consider the appropriate penalty. Additionally, the court was tasked with determining whether the proceedings had been instituted without reasonable cause or whether there had been an unreasonable act or omission by the applicant, which would be relevant to the question of costs.

Justice Lucev considered various factors relevant to the imposition of penalties under the *Fair Work Act 2009* (Cth), including the nature and seriousness of the contraventions, the size of the employer, the need for deterrence, and the respondents' cooperation with the investigation. In relation to costs, the court applied the principles governing the award of costs in industrial law proceedings, assessing whether the applicant's actions met the threshold for an award against them.

The court ultimately made orders regarding penalties for the contraventions found and made specific orders concerning the costs of the proceedings.

Orders