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Pine v Casello Constructions Pty Ltd

Pine v Casello Constructions Pty Ltd

Case [2005] FCA 1854 23 November 2005

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FEDERAL COURT OF AUSTRALIA
Pine v Casello Constructions Pty Ltd [2005] FCA 1854
PINE V CASELLO CONSTRUCTIONS PTY LTD
VID 873 OF 2005
NORTH J
23 NOVEMBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  VID 873/2005
BETWEEN:   LISETTE PINE
  APPLICANT
AND:  CASELLO CONSTRUCTIONS PTY LTD

RESPONDENT

JUDGE:  NORTH J
DATE OF ORDER:             23 NOVEMBER 2005
PLACE:  MELBOURNE
THE COURT DECLARES, pursuant to s.21 of the Federal Court Australia Act 1976 (Cth) the Respondent has contravened s187AA of the WR Act by making payment to each of:
1.

Steven Stonehouse;

Rick Gibilisco;

Tony Distefano;

Michael Sartorello;

Colin Barun;

Timothy Traill;

Carmine Parente;

Michael Mazzarella;

Johnny Distefano

Giovanni (John) Martuccio;

Thomas Callaghan

Aaron Giles;

Robert Jaman;

Goce (George) Dimoski;

Antonio Sirianni; and

Giovani (John) Gravina,

for a period on 5 August 2003 in which they engaged in industrial action.
2.

Damien Vendramini;

Adam D’Angelo;

Rob Galna; and

Spiro Balassopoulos,

for a period or periods on 5 and 6 August 2003 in which they engaged in industrial action.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 873 OF 2005

BETWEEN:

LISETTE PINE
APPLICANT

AND:

CASELLO CONSTRUCTIONS PTY LTD

RESPONDENT

JUDGE:

NORTH J

DATE:

23 NOVEMBER 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Before the Court are two applications under s 187AD(1)(a) of the Workplace Relations Act 1996 (Cth) (the Act) in relation to a contravention by Casello Constructions Pty Ltd, the respondent, of s 187AA(1) of the Act.
The respondent is a subcontractor carpentry company which has admitted to having paid some of its employees during work stoppages on 5 August 2003 and 6 August 2003. The employees were engaged in industrial action as defined by the Act and it is therefore accepted that the respondent was in breach of s187AA(1) of the Act.
The industrial action on 5 August 2003 was taken in response to the death of a labourer, Mr. Andrew Schouten, on a construction site in Shepparton. On 1 August 2003, Mr. Schouten died when a crane he was working near struck overhead powerlines. Mr. Schouten’s death resulted in a safety audit being conducted at the Three Towers and Concept Blue sites in accordance with the On-site Fatalities Policy and Procedure of the Construction, Forestry, Mining and Energy Union (CFMEU) on 5 August 2003. As a result of Mr Schouten’s death and the implementation of the On-site Fatalities Policy and Procedure, employees of the respondent stopped work at these two sites. On 5 August 2003, 17 employees stopped work at the Three Towers site for four and a half hours and four employees stopped work on the Concept Blue site for six and a half hours. On 6 August 2003, four employees stopped work for three hours on the Concept Blue site. The stoppage related to the employers failure to agree to pay workers for the initial stoppage on 5 August 2003. The contravention alleged is the payment by the respondent to the 21 employees amounting to a total of approximately $2000.
A number of…

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 Pine v Casello Constructions Pty Ltd

Details

AGLC: Pine v Casello Constructions Pty Ltd [2005] FCA 1854
Case: [2005] FCA 1854
Decision Date: 23 NOVEMBER 2005

CaseChat Overview and Summary

Lisette Pine brought an application against Casello Constructions Pty Ltd in the Federal Court of Australia, arguing that the respondent had contravened section 187AA of the Workplace Relations Act 1996 by making payments to employees who were participating in industrial action on 5 and 6 August 2003. The industrial action followed the death of a fellow worker, Mr. Andrew Schouten, on 1 August 2003, which led to a safety audit on 5 August 2003. Seventeen employees at the Three Towers site and four employees at the Concept Blue site stopped work for several hours on 5 August 2003, and a further four employees stopped work at the Concept Blue site on 6 August 2003. Casello Constructions admitted to paying these employees during the work stoppages, which it acknowledged was a contravention of the Act.

The legal issue before the court was whether a penalty should be imposed on Casello Constructions for the contravention. The court considered various factors, including the respondent's awareness of the industrial action, its conduct in seeking advice from the head contractor, and the measures taken by the respondent to prevent future contraventions. The court also considered the circumstances of the industrial action, noting that the stoppage on 5 August 2003 was in response to the death of a fellow worker, while the stoppage on 6 August 2003 was related to the payment issue from the previous day.

The court found that the respondent had acted in a rational and practical manner in seeking advice from the head contractor, and had taken steps to prevent future contraventions. The court also noted that the respondent had incurred legal costs of $8000 in defending the application, which served as a deterrent against future contraventions. Given these circumstances, the court decided to make the declaration sought by the applicant but to impose no penalty on the respondent.

The court's decision highlights the importance of understanding the specific circumstances of each case when imposing penalties for contraventions of industrial laws. The court considered a range of factors, including the respondent's conduct, the circumstances of the industrial action, and the need for general deterrence. The court's decision also underscores the importance of taking steps to prevent future contraventions and of seeking advice from relevant authorities when faced with difficult circumstances on a construction site.

Orders