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Pine v Expoconti Pty Ltd

Pine v Expoconti Pty Ltd

Case [2005] FCA 1434 12 October 2005

Employment & Labour Law

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FEDERAL COURT OF AUSTRALIA
Lisette Pine v Expoconti Pty Ltd [2005] FCA 1434
WORKPLACE RELATIONS – payments in relation to periods of industrial action – payment by employer to an employee in relation to a period during which the employee engaged in industrial action while the employee was a member of an organisation – contravention admitted – breach admitted – circumstances in mitigation – institution of procedures to prevent further breaches
Federal Court of Australia Act 1976 (Cth), s 21
Workplace Relations Act 1996 (Cth) ss 4, 84, 187AA, 187AD, 187AF
CPSU v Telstra Corporation Ltd (2001) 108 IR 228, cited
CFMEU v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231, cited
Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428, discussed
Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500, cited
Ponzio v Firebase Sprinkler Systems Pty Ltd [2005] FCA 733, followed
Ponzio v D and E Air Conditioning Pty Ltd [2005] FCA 964, followed
Ponzio v BVM Builders Pty Ltd [2005] FCA 238, discussed
Pine v Austress Freyssinet (Vic) Pty Ltd [2005] FCA 583, referred to
LISETTE PINE v EXPOCONTI PTY LTD (ACN 007 361 346)
V 1508 of 2004
KENNY J
12 OCTOBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1508 OF 2005

BETWEEN:

LISETTE PINE
APPLICANT

AND:

EXPOCONTI PTY LTD
(ACN 007 361 346)
RESPONDENT

JUDGE:

KENNY J

DATE OF ORDER:

12 OCTOBER 2005

WHERE MADE:

MELBOURNE

THE COURT DECLARES THAT:
1.Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), the respondent has contravened s 187AA of the Workplace Relations Act 1996 (Cth) by making a payment or payments to each of:
(a)Leigh Bomford;
(b)Angelo D’Andrea;
(c)Josip Dujmovic;
(d)Jason King;
(e)Aaron Miller;
(f)Adam Morrison;
(g)Grant Munyard;
(h)Andrew Nelson;
(i)Adrian Osbourne;
(j)Michael Quick;
(k)Noel Sheane-Smith;
(l)Gavin Sheane-Smith;
(m)George Tsaples;
(n)William Turis; and
(o)Modesto Vieira

for a period or periods on 5 and 6 August in which they engaged in industrial action.
2.Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), the respondent has contravened s 187AA of the Workplace Relations Act 1996 (Cth) by making a payment or payments to each of:
(p)        Nathan Hicks;
(q)        Gary Beecroft;
(r)        Ivan Vrselja;
(s)        Toloumu Malota;
(t)         Momcilo Kosic;
(u)        Daniel Djokic;
(v)        Andrew Benn;
(w)       Brendan Hurd;
(x)        Joseph Rivera;
(y)        Vitali Voronov;
(z)        Jun Guo Liu;
(aa)      Li Wen Yu; and
(bb)      Fabio Stradiijot

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

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 1508 OF 2005

BETWEEN:

LISETTE PINE
APPLICANT

AND:

EXPOCONTI PTY LTD
(ACN 007 361 346)
RESPONDENT

JUDGE:

KENNY J

DATE OF ORDER:

12 OCTOBER 2005

WHERE MADE:

MELBOURNE

REASONS FOR JUDGMENT

The applicant applied for the imposition of a penalty under s 187AD(1)(a)…

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 Expoconti Pty Ltd

Details

AGLC: Pine v Expoconti Pty Ltd [2005] FCA 1434
Case: [2005] FCA 1434
Decision Date: 12 OCTOBER 2005

CaseChat Overview and Summary

The applicant, Ms Pine, applied to the Federal Court for a penalty against Expoconti Pty Ltd (Expoconti) for contraventions of s 187AA of the Workplace Relations Act 1996 (Cth). The contraventions occurred when Expoconti paid its employees for periods during which they engaged in industrial action. The contraventions were admitted, and the court was required to determine whether a penalty should be imposed and, if so, the appropriate amount. The legal issues included whether the contraventions were inadvertent, the impact of the respondent's mitigating factors, and the purpose of the penalty provisions under the Act. The court considered the respondent's conduct, the absence of harm from the stoppages, the respondent's lack of prior contraventions, and its subsequent change in policy to prevent recurrence. The court also weighed the deterrence factors, including the costs incurred by the respondent in defending the proceeding. After considering these factors, the court decided not to impose a penalty, making declarations of contravention only. The decision aligns with other recent cases where similar contraventions were found but penalties were not imposed due to mitigating factors and the absence of significant harm.

Orders