Ponzio v BVM Builders Pty Ltd

[2005] FCA 238

FEDERAL COURT OF AUSTRALIA

Ponzio v BVM Builders Pty Ltd [2005] FCA 238

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

Workplace Relations Act 1996 (Cth) ss 4, 84, 187AA, 187AD, 187AF

Workplace Relations Act 1996 (Cth) reg 96

Masters v Highway One Transport Pty Ltd (1990) 33 IR 1 referred to
Peat v Oxley Airlines Ltd (1991) 40 IR 96 referred to

GARY PONZIO v BVM BUILDERS PTY LTD (ACN 007 333 726)
V 1494 of 2004

KENNY J
15 MARCH 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1494 OF 2004

BETWEEN:	GARY PONZIO APPLICANT
AND:	BVM BUILDERS PTY LTD (ACN 007 333 726) RESPONDENT
JUDGE:	KENNY J
DATE OF ORDER:	15 MARCH 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.A penalty of $200 is imposed on the respondent in respect of contravention of s 187AA of the Workplace Relations Act 1996 (Cth) on 5 and 6 August 2003.

2.        Such penalty be paid into the Consolidated Revenue Fund.

3.Such penalty be payable forthwith 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	V 1494 OF 2004

BETWEEN:	GARY PONZIO APPLICANT
AND:	BVM BUILDERS PTY LTD (ACN 007 333 726) RESPONDENT

JUDGE:	KENNY J
DATE:	15 MARCH 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant applied, pursuant to s 187AC of the Workplace Relations Act 1996 (Cth) (“the Act”), for orders under s 187AD in respect of an admitted contravention of s 187AA.

2. Subsection 187AA(1) provides that an employer must not make a payment to an employee in relation to a period during which the employee engaged, or engages, in industrial action if:

   “(a)the employer or employee was or is a member of an organisation during that period; …”.

   Subsection 187AA(3) provides that a contravention of subs (1) is not an offence. 

3. Section 187AD provides that, in respect of a contravention of s 187AA, the Court may, if the Court considers it is appropriate in all the circumstances of the case, make one or more of certain orders, including an order imposing on a person who contravened the section a penalty of not more than $10,000.

4. According to the statement of claim filed in the proceeding, the applicant is an inspector appointed under s 84 of the Act and is entitled to bring the proceeding pursuant to s 187AC(2)(c) of the Act and reg 32B of the Workplace Relations Regulations 1996 (Cth). The statement of claim alleges that the respondent is a “constitutional corporation” for…