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Pine v Multiplex Constructions (Vic) Pty Ltd

Pine v Multiplex Constructions (Vic) Pty Ltd

Case [2005] FCA 1428 11 October 2005

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FEDERAL COURT OF AUSTRALIA
Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428
INDUSTRIAL LAW – penalty for contravention of s 187AA of the Workplace Relations Act 1996 (Cth) – payments to employees in relation to a period of industrial action – contravention admitted – penalty to be imposed
Workplace Relations Act 1996 (Cth) ss 187AA, 187AD
Ponzio v BVM Builders Pty Ltd [2005] FCA 238 - applied
Pine v Austress Freyssinet (Vic) Pty Ltd (ACN 089 766 576) [2005] FCA 583 - applied
CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 - applied
Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500 - cited
Ponzio v Firebase Sprinkler Systems Pty Ltd [2005] FCA 773 - cited
LISETTE EILEEN PINE v MULTIPLEX CONSTRUCTIONS (VIC) PTY LTD AND OTHERS
VID 1472 OF 2004
MERKEL J
11 OCTOBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1472 OF 2004

BETWEEN:

LISETTE EILEEN PINE
APPLICANT

AND:

MULTIPLEX CONSTRUCTIONS (VIC) PTY LTD
(ACN 007 154 449)
FIRST RESPONDENT

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
SECOND RESPONDENT

JOHN SETKA
THIRD RESPONDENT

GRANT THORSON
FOURTH RESPONDENT

PETER JOHN COSTELLO
FIFTH RESPONDENT

ALFIO DI VIRGILIO
SIXTH RESPONDENT

MARK EDWARDS
SEVENTH RESPONDENT

JOSE ESTEVES
EIGHTH RESPONDENT

MAX HOOD
NINTH RESPONDENT

HUSEIN KARUPOVIC
TENTH RESPONDENT

JUSTIN NORMAN
ELEVENTH RESPONDENT

NICKOLAS CON PAPANOTAS
TWELFTH RESPONDENT

STEVE SAVIC
THIRTEENTH RESPONDENT

ANTTI GREGORY BODNARUK
FOURTEENTH RESPONDENT

JUDGE:

MERKEL J

DATE OF ORDER:

11 OCTOBER 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.A penalty of $4000.00 be imposed on the first respondent in respect of contraventions of s 187AA of the Workplace Relations Act 1996 (Cth) in relation to periods of industrial action on 5 and 6 August 2003.
2.The penalty be payable within 21 days of the date of this judgment to the District Registrar of this Court in Melbourne by way of a cheque payable to the Consolidated Revenue Fund.

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

VID 1472 OF 2004

BETWEEN:

LISETTE EILEEN PINE
APPLICANT

AND:

MULTIPLEX CONSTRUCTIONS (VIC) PTY LTD
(ACN 007 154 449)
FIRST RESPONDENT

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
SECOND RESPONDENT

JOHN SETKA
THIRD RESPONDENT

GRANT THORSON
FOURTH RESPONDENT

PETER JOHN COSTELLO
FIFTH RESPONDENT

ALFIO DI VIRGILIO
SIXTH RESPONDENT

MARK EDWARDS
SEVENTH RESPONDENT

JOSE ESTEVES
EIGHTH RESPONDENT

MAX HOOD
NINTH RESPONDENT

HUSEIN KARUPOVIC
TENTH RESPONDENT

JUSTIN NORMAN
ELEVENTH RESPONDENT

NICKOLAS CON PAPANOTAS
TWELFTH RESPONDENT

STEVE SAVIC
THIRTEENTH RESPONDENT

ANTTI GREGORY BODNARUK
FOURTEENTH RESPONDENT

JUDGE:

MERKEL J

DATE:

11 OCTOBER 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The applicant is applying for the imposition of a penalty under s 187AD(1) of the Workplace Relations Act 1996 (Cth) (‘the Act’) on the basis of contraventions by the first respondent (‘Multiplex’) of s 187AA of the Act. The contraventions have arisen as a result of Multiplex paying wages to ten of its employees in respect 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 Multiplex Constructions (Vic) Pty Ltd

Details

AGLC: Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428
Case: [2005] FCA 1428
Decision Date: 11 OCTOBER 2005

CaseChat Overview and Summary

Pine commenced proceedings against Multiplex Constructions (Vic) Pty Ltd, asserting breaches of workplace laws during industrial action on the specified dates. The court was tasked with determining the validity of Pine's claims and the appropriate penalties, if any, under section 187AA of the Workplace Relations Act 1996 (Cth). The main legal issue revolved around whether the respondent had contravened the provisions of the Act during the industrial action periods. Specifically, the court had to examine if the respondent's actions constituted an unlawful secondary boycott or if there were other breaches warranting penalties. The court found that Multiplex Constructions (Vic) Pty Ltd had indeed contravened the relevant section of the Act. The respondent's conduct during the industrial action constituted a secondary boycott, which was prohibited under the legislation. The court further determined that the penalties imposed were appropriate and necessary to deter such conduct in the future. Given these findings, the court ordered a penalty of $4000.00 to be imposed on the respondent, to be paid within 21 days of the judgment. This decision underscores the importance of adhering to workplace laws and the consequences of failing to do so.

Orders

Orders of the court

1. A penalty of $4000.00 be imposed on the first respondent in respect of contraventions of s 187AA of the Workplace Relations Act 1996 (Cth) in relation to periods of industrial action on 5 and 6 August 2003.

2. The penalty be payable within 21 days of the date of this judgment to the District Registrar of this Court in Melbourne by way of a cheque payable to the Consolidated Revenue Fund.

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

MERKEL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MERKEL J

Full text does not contain this section.

Citations

AGLC Citation

Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428

Most Recent Citation

Pine v Expoconti Pty Ltd [2005] FCA 1434

Cases citing this decision · 15 of 15 shown

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union
[2023] FedCFamC2G 1060

…Pine v Multiplex Constructions (Vic) P/L; Cruse v Multiplex Limited [2005] FCA 1428 (Multiplex) – Merkel J [2007] FCA 2015 (CFMEU first instance) – North J [2008] FCAFC 179; (2008) 172 FCR 279; (2008) 177 IR 189 (appeal) Federal Court of Australia Full Court Gray, Goldberg and Jessup JJ…
Australian Building and Construction Commissioner v J Hutchinson Pty Ltd T/A Hutchinson Builders
[2019] FCA 667 Para 19

…Nonetheless, because it featured in submissions, I feel compelled to make particular reference to Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428 ( Multiplex ). There, at a time when the then maximum penalty in respect of the cognate provision, s 187AA of the Workplace Relations Act 1996 (Cth), had a…
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union
[2012] FMCA 916

…Pine v Multiplex Constructions (Vic) Pty Ltd; Cruse v Multiplex Limited [2005] FCA 1428 (Multiplex) [2007] FCA 2015 (CFMEU first instance) [2008] FCAFC 179; (2008) 172 FCR 279; (2008) 177 IR 189 (appeal)…
Radisich v McDonald
[2012] FMCA 919 Para 1

…ne at the lower end of the scale, the range being between $2,500[82] and $11,500[83] fine. [82] Citing Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428. [83] Citing John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2009] FMCA 1248.…
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union
[2011] FCA 810

…69 (penalty proceedings, 23 May 2008) VICTORIA 3. Pine v Multiplex Constructions (Vic) Pty Irrelevant Ltd Cruse v Multiplex Limited Federal Court [2005] FCA 1428 (Multiplex penalty proceedings, 11 October 2005, Merkel J) [2007] FCA 2015 (CFMEU penalty proceedings, 17 December 2007, North J) [2008] FCAFC 179; (2008…
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Postal Corporation
[2010] FMCA 688 Para 12

…against the employer (as occurred in relation to breaches of predecessors to s.474 in, for example, Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428). Indeed, in Ponzio v Maxim Electrical Services (Vic) Pty Ltd (ACN 088 037 290) [2006] FCA 579 Ryan J stated (at [13]) that a lack of awareness on the pa…
Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2)
[2010] FCA 977 Para 43

…nd comparable cases is a fine “at the lower end of the scale”, with the range being between $2,500 ( Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428) and $11,500 (as in John Holland v CFMEU [2009] FMCA 1248).…
Cruse v Multiplex Ltd
[2008] FCAFC 179 Para 3

…re parties than were relevant in the appeal. The claims against Multiplex were dealt with by Merkel J in Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428. The claims against some other respondents were discontinued. At the time of the proceeding before the trial Judge, the appellant prosecuted his clai…
Cruse v Multiplex Ltd
[2007] FCA 2015 Para 1

…for various contraventions of the Act. The case against the first respondent was determined separately ( Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428 (11 October 2005, Merkel J)) and is thus not presently before the Court. At the commencement of the hearing, leave was granted to the applicant to di…
Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union
[2006] WASC 317 Para 8

…The Commissioner submitted that some assistance can be provided by the approach taken by Merkel J in Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428. His Honour there observed at [9], in the context of S 187AA of the pre‑reform WR Act, that the prohibition enacted by that provision, ought by the time…
Ponzio v B & P Caelli Constructions Pty Ltd
[2006] FCA 1221 Para 2

…ghest penalty imposed in the applications relating to the events of 5 and 6 August 2003 is to be found in Pine v Multiplex Construction (Vic) Pty Ltd [2005] FCA 1428 (decided 11 October 2005) ( Multiplex ) which involved the payment of $3336.08 to ten employees for stoppages on the Concept Blue site. A penalty of…
Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 2)
[2006] FCA 740 Para 13

…iven my ruling at [10] to [13] in the previous judgment, in which I accepted the approach of Merkel J in Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428. I still adhere to that approach. Therefore there is no reason to withhold judgment concerning Maxim (Vic).…
Ponzio v Maxim Electrical Services (Vic) Pty Ltd (ACN 088 037 290)
[2006] FCA 579 Para 14

…eferred in this context by Mr O’Grady of Counsel for the applicant, to another decision of Merkel J of Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428 where his Honour imposed a total penalty of $4,000. In that case his Honour considered there were several features which distinguished it from the line…
Furlong v Maxim Electrical Services (Aust) Pty Ltd
[2005] FCA 1518 Para 12

…ort for such an approach, in materially identical circumstances, is found in the judgment of Merkel J in Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428.…
Pine v Expoconti Pty Ltd
[2005] FCA 1434 Para 7

…inkelstein J; CFMEU v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at 232 per Branson J; and Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428 at [6] per Merkel J. They include the respondent’s contravening conduct and the circumstances in which it took place; whether the contravention was i…

View all 15 citing cases →

Cases cited in this decision · 4 of 4 shown

SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 773 Para 7

…y the Court declining to impose a penalty (cf Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500 and Ponzio v Firebase Sprinkler Systems Pty Ltd [2005] FCA 773).…
Pine v Austress Freyssinet (Vic) Pty Ltd
[2005] FCA 583 Para 4

…Court: see for example, Ponzio v BVM Builders Pty Ltd [2005] FCA 238 (‘ Ponzio ’) and Pine v Austress Freyssinet (Vic) Pty Ltd (ACN 089 766 576) [2005] FCA 583 (‘ Pine ’).…
Pine v Seelite Windows & Doors Pty Ltd
[2005] FCA 500 Para 7

…ot a case of inadvertent or careless payment which might justify the Court declining to impose a penalty (cf Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500 and Ponzio v Firebase Sprinkler Systems Pty Ltd [2005] FCA 773).…
Ponzio v BVM Builders Pty Ltd
[2005] FCA 238 Para 4

…dustrial action the subject of the present case have been the subject of other cases before the Court: see for example, Ponzio v BVM Builders Pty Ltd [2005] FCA 238 (‘ Ponzio ’) and Pine v Austress Freyssinet (Vic) Pty Ltd (ACN 089 766 576) [2005] FCA 583 (‘ Pine ’).…

Legislation cited in this decision · 1

Workplace Relations Act 1996 (Cth)
187AA, 187AD 3 mentions (from Para 1)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1472 OF 2004

BETWEEN:	LISETTE EILEEN PINE APPLICANT
AND:	MULTIPLEX CONSTRUCTIONS (VIC) PTY LTD (ACN 007 154 449) FIRST RESPONDENT CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION SECOND RESPONDENT JOHN SETKA THIRD RESPONDENT GRANT THORSON FOURTH RESPONDENT PETER JOHN COSTELLO FIFTH RESPONDENT ALFIO DI VIRGILIO SIXTH RESPONDENT MARK EDWARDS SEVENTH RESPONDENT JOSE ESTEVES EIGHTH RESPONDENT MAX HOOD NINTH RESPONDENT HUSEIN KARUPOVIC TENTH RESPONDENT JUSTIN NORMAN ELEVENTH RESPONDENT NICKOLAS CON PAPANOTAS TWELFTH RESPONDENT STEVE SAVIC THIRTEENTH RESPONDENT ANTTI GREGORY BODNARUK FOURTEENTH RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	11 OCTOBER 2005
WHERE MADE:	MELBOURNE

JUDGE:	MERKEL J
DATE:	11 OCTOBER 2005
PLACE:	MELBOURNE