Ponzio v D and E Air Conditioning Pty Ltd - [2005] FCA 964

FEDERAL COURT OF AUSTRALIA
Ponzio v D and E Air Conditioning Pty Ltd [2005] FCA 964
GARY PONZIO v D AND E AIR CONDITIONING PTY LTD (ACN 005 488 791)
VID 1531 OF 2004
NORTH J
15 JUNE 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1531 OF 2004

BETWEEN:

GARY PONZIO
APPLICANT

AND:

D AND E AIR CONDITIONING PTY LTD
(ACN 005 488 791)
RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

15 JUNE 2005

WHERE MADE:

MELBOURNE

THE COURT DECLARES, pursuant to s 21 of the Federal Court of Australia Act1976 (Cth), that the Respondent has contravened s 187AA of the Workplace Relations Act 1996 (Cth) by making a payment or payments to each of:
(a)       Richard Thorne;
(b)       Peter Gray;
(c)       Keith Richardson;
(d)      David Webster;
(e)       Evan Panagopoulos;
(f)       Trevor Rowe;
(g)       Greg Oakenfull;
(h)       Anthony Overton;
(i)        Steven Parke;
(j)        Warren Boutle;
(k)       David Baulch;
(l)        Glenn Craig;
(m)      Stephen McMahon;
(n)       Robert Kerr;
(o)       Chansamone Chanthabouasy;
(p)       Matthew Ayres;
(q)       Sean Painter;
(r)       David Clements;
(s)       Jason Woodyard;
(t)       John Poland;
(u)       Paul Marsh;
(v)       Anthony Rogers;
(w)      Michael Horsburgh;
(x)       Ryan Witchell;
(y)       David Dawson;
(z)       Terry Smart;
(aa)     Andrew Begg;
(bb)     Rohan Chapman;
(cc)     Timothy Richards;
(dd)     Mark Trowbridge;
(ee)     Matthew Fullerton;
(ff)      Gregory Mate;
(gg)     Neville Foots; and
(hh)     Adam Maclean
for a period or periods on 5 August 2003 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

VID 1531 OF 2004

BETWEEN:

GARY PONZIO
APPLICANT

AND:

D AND E AIR CONDITIONING PTY LTD
(ACN 005 488 791)
RESPONDENT

JUDGE:

NORTH J

DATE:

15 JUNE 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Before the Court is an application under s 187AD(1) of the Workplace Relations Act1996 (Cth) (the Act) in relation to the respondent’s contravention of s 187AA(1) of the Act.
Section 187AD(1), until 10 August 2004, provided:
In respect of contraventions of section 187AA or 187AB, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:
(a)an order imposing on a person who contravened or is contravening that section a penalty of not more than $10,000;
(b)if the person contravened or is contravening section 187AB - an order requiring the person to pay to an employer compensation of such amount as the Court thinks appropriate;
(c)injunctions (including interim injunctions), and any other orders, that the Court considers necessary to stop the contravention or remedy its effects;
(d)any other consequential orders.
Section 187AA(1) provides:
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; or
(b)the employer was or is 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.

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Details

Case: [2005] FCA 964
Decision Date: 15 JUNE 2005

CaseChat Overview and Summary

Gary Ponzio brought an application against D and E Air Conditioning Pty Ltd (D&E), alleging that the company contravened s 187AA(1) of the Workplace Relations Act 1996 (Cth) by making payments to employees who engaged in industrial action on 5 August 2003. The legal issues before the court were whether the respondent had contravened the relevant section of the Act and, if so, what penalty, if any, should be imposed.

The court considered the relevant legislative framework and the agreed facts of the case, which involved industrial action following the death of a worker in an industrial accident. The court found that the respondent had indeed contravened s 187AA(1) of the Act by making payments to employees who engaged in industrial action. The court then examined the factors for and against imposing a penalty on the respondent. The applicant argued that the breaches were significant, involved multiple sites and employees, and the total amount of wages paid was substantial. The respondent, on the other hand, argued that it had no previous convictions, cooperated with the applicant, and had taken steps to avoid further breaches of the Act.

After considering the relevant cases and the circumstances of this case, the court decided not to impose a penalty on the respondent. The court found that the likelihood of the respondent reoffending was low, and the amount of disadvantage already suffered by the respondent, including legal costs and project costs, was sufficient to serve the purposes of deterrence. The court granted the declaration sought by the applicant but imposed no penalty on the respondent.

Orders