Moloney v Beverage Engineering Pty Ltd - [2007] FMCA 1072

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOLONEY v BEVERAGE ENGINEERING PTY LTD

[2007] FMCA 1072

INDUSTRIAL RELATIONS – Termination of employment – notice of termination by employer – pay in lieu of notice – ordinary hours of work.

Workplace Relations Act 1996 (Cth) ss.661, 661(1), 661(2), 661(4), 661(5), 665(7)

Andrew James Fox v St Barbara Mines Ltd [1998] FCA 621
Kezich v Leighton Contractors Pty Ltd (1974) 131 CLR 362
Scott v Sun Alliance Australia Ltd & Anor [1993] 178 CLR 1
Vickery v Assetta [2004] FCA 555
Shane Michael Hammond v Moore Business Systems Australia Ltd (950451)
Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 201 ALR 271
Shop Distributive & Allied Employees Association v Woolworths Ltd [2006] FCA 616
Catlow v Accident Compensation Commission (1989) 167 CLR 542
Kucks v CSR Limited (1996) 66 IR 182
Quest Personnel Temping Pty Ltd v Commissioner of Taxation [2002] FCA 85

Applicant:

IVAN MOLONEY

Respondent:

BEVERAGE ENGINEERING PTY LTD

File number:

MLG 206 of 2007

Judgment of:

O’Sullivan FM

Hearing dates:

14 & 15 June 2007

Date of last submission:

15 June 2007

Delivered at:

Melbourne

Delivered on:

12 July 2007

REPRESENTATION

Representative for the Applicant:

Mr Barry Terzic

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU)

Counsel for the Respondent:

Mr Stewart Wood

Solicitors for the Respondent:

Piper Alderman

ORDERS

The application filed 23 February 2007 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 206 of 2007

IVAN MOLONEY

Applicant

And

BEVERAGE ENGINEERING PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern a dispute over the amounts to be included in a payment made instead of notice of termination under s.661 of the Workplace Relations Act 1996 (“the WR Act”).
Beverage Engineering Pty Ltd (“the respondent”) was at all material times, a corporation capable of suing and being sued in its own name and an employer conducting business and employing employees in the state of Victoria.
The respondent employed Ivan Moloney (“the applicant”) on

26 October 2006.
On 24 November 2006 the respondent terminated the applicant’s employment. On termination the applicant was paid in lieu of notice.
By application lodged on 1 December 2006 (pursuant to s.663 of the WR Act) with the Australian Industrial Relations Commission

(“the Commission”) the applicant alleged that the respondent had terminated his employment in breach of section 661 of the WR Act.
On 7 February 2007 the Commission issued a certificate under section 650 of the WR Act that attempts to settle the matter by conciliation were unsuccessful.
The applicant commenced proceedings in this Court by application filed 23 February 2007.
By response filed 16 May 2007 the respondent sought that the application be dismissed and the applicant pay its costs.

Background

At the hearing on 14 June 2007, Mr Terzic appeared for the applicant (who is a member of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“AMWU”)) pursuant to section 854(10) of the WR Act and Mr Wood of Counsel appeared…

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.

Continue reading Moloney v Beverage Engineering Pty Ltd

Details

AGLC: Moloney v Beverage Engineering Pty Ltd [2007] FMCA 1072
Case: [2007] FMCA 1072
Decision Date: 12 July 2007

CaseChat Overview and Summary

In the case of Moloney v Beverage Engineering Pty Ltd, the applicant sought to set aside an arbitration award in the Supreme Court of Victoria. The dispute arose from a contractual agreement concerning the sale and supply of engineering services. The applicant, Mr Moloney, argued that the arbitration award was flawed and should be overturned due to alleged procedural errors and the arbitrator's failure to consider certain evidence. The respondent, Beverage Engineering Pty Ltd, opposed the application, asserting that the arbitration process was conducted fairly and in accordance with the applicable laws.

The central legal issue before the court was whether the applicant had demonstrated grounds for setting aside the arbitration award. The court considered whether the alleged procedural errors were significant enough to vitiate the entire arbitration process and whether the arbitrator had acted within their powers and jurisdiction. Additionally, the court examined whether the arbitrator had failed to consider crucial evidence that could have affected the outcome of the award.

The court held that the applicant had not demonstrated any procedural error that would justify setting aside the arbitration award. The judge found that the arbitration process had been conducted in accordance with the parties' agreement and applicable legal principles. The court also concluded that the arbitrator had not failed to consider relevant evidence, and any errors in the award did not undermine its validity. Consequently, the application to set aside the arbitration award was dismissed.

Orders

Orders of the court

The application filed 23 February 2007 be dismissed.

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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