Ponzio v BVM Builders Pty Ltd

Case [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…

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Details
AGLC
Ponzio v BVM Builders Pty Ltd [2005] FCA 238
Case
[2005] FCA 238
Decision Date

CaseChat Overview and Summary

Ponzio brought a case against BVM Builders Pty Ltd concerning alleged contraventions of the Workplace Relations Act 1996 (Cth). The plaintiff, an employee of the defendant, claimed that the defendant had failed to comply with certain legislative requirements, specifically in relation to the payment of wages and superannuation. The matter was heard in the Federal Circuit Court of Australia, where the plaintiff sought penalties for the alleged breaches.

The court had to determine whether the defendant had indeed contravened the provisions of the Act and, if so, what penalties should be imposed. The specific sections under consideration were s 187AA and s 187AB, which relate to the failure to pay wages and superannuation respectively. The court had to examine the evidence presented by both parties and assess whether the defendant had acted in breach of the statutory obligations.

After reviewing the evidence and submissions, the court found that the defendant had contravened s 187AA of the Act on 5 and 6 August 2003. Consequently, the court imposed a penalty of $200 on the respondent. This penalty was to be paid into the Consolidated Revenue Fund and was to be made payable forthwith to the District Registrar of the Court in Melbourne. The court's decision was clear and the penalties were to be enforced as outlined in the orders.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KENNY J

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Ratio Decidendi

Legal Principle Established

Established by: KENNY J

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