Raphael v G4S Custodial Services Pty Ltd

[2015] FCCA 661

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAPHAEL v G4S CUSTODIAL SERVICES PTY LTD [2015] FCCA 661

Catchwords:
INDUSTRIAL LAW – Alleged breach of Fair Work Act – late return to employment duties by applicant after protected industrial action – pay deducted from applicant – whether applicant’s conduct was covered by a protected industrial action – whether applicant’s conduct possessed an industrial purpose or nature.

Legislation:

Fair Work Act 2009, ss.19, 323, 424, 474, 545

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Age Company Limited [2004] FCA 299

Applicant: ANTOUN RAPHAEL

Respondent: G4S CUSTODIAL SERVICES PTY LTD

File Number: MLG 2333 of 2014

Judgment of: Judge Smith

Hearing date: 27 February 2015

Date of Last Submission: 27 February 2015

Delivered at: Melbourne

Delivered on: 27 February 2015

REPRESENTATION

Solicitors for the Applicant: Mr Ansorge of Community & Public Sector Union

Solicitors for the Respondent: Ms Caylock of Rigby Cooke Lawyers

THE COURT DECLARES THAT:

1. The respondent contravened s.323 of the Fair Work Act 2009 (Cth).

THE COURT ORDERS THAT:

1. Leave is granted to Mr Ansorge to appear on behalf of the applicant, and to Ms Caylock to appear on behalf of the respondent.

2. Pursuant to s.545(2)(b) of the Fair Work Act 2009 (Cth) the respondent pay the applicant the sum of $131.40.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2333 of 2014

ANTOUN RAPHAEL

Applicant

And

G4S CUSTODIAL SERVICES PTY LTD

Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. In this matter Antoun Raphael, who is employed by the respondent, G4S Custodial Services, as a correctional officer at Port Phillip Prison in Laverton, seeks a declaration that the respondent has breached a term of the G4S Custodial Services Pty Ltd Correctional Services Enterprise Agreement 2011 and s.323 of the Fair Work Act 2009 (Cth) (“Act”) by failing to pay him the amount of $131.40 in the following circumstances. On 10 July 2014 members of the Community and Public Sector Union (“CPSU”), of which Mr Raphael was one, participated in a stoppage of work, starting at 8.15am, in pursuit of an enterprise agreement. Notice had been given of that meeting, in accordance with the requirements of the Act, that it would continue from 8.15am until 10.15am.

2. The evidence is that the meeting finished shortly before 10am and at around 9.50am members who had participated in the protected action entered the front entrance of the prison to return to work and undergo the security screening process.  That process includes a number of matters and because, it seems, of the number of people undertaking it at the same time, there was some delay in doing so.  Having presented at the front door of the prison, Mr Raphael, inside what is described as the air lock, swiped in his security key at 10.16am, that is one minute after the notice had provided for the industrial action. 

3. In those circumstances, the employer respondent, purportedly pursuant to s.474 of the Act, refused to pay or failed to pay Mr Raphael an amount of $131.40, being for four hours pay. That provision provides:

   If an employee engaged or engages in industrial action that is not protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to:

   (a)If the total duration of the industrial action on the day is at least four days, the total duration of the industrial action on the day;  or

   (b)Otherwise four hours of that day.

4. One of the bases upon which the employer says that it was required by s.474, which is a mandatory provision, to not pay Mr Raphael for four hours arises from a notice, dated 9 July 2014, which was addressed to members of the CPSU proposing to take part in the action on 10 July. The relevant part of that notice stated:

   Employees will not be paid for the two hour stoppage and must not leave their units/ before 8.15 am or when count of prisoners is called correct whichever is the later and must be back at units/work areas by 10.15 am.  If not, employees will be taking unprotected industrial action.

5. The issue then falls within a very small compass, particularly whether what Mr Raphael did between 10.15am and 10.16am amounted to industrial action within the meaning of s.19 of the Act. Ms Caylock, who appeared by leave for the respondent, submitted that what Mr Raphael did fell within either sub-ss.19(1)(b) or (c) of the Act. Those paragraphs provide that industrial action means actions of any of the following kind:

   ...

   (b)a ban, limitation or restriction on the performance of work by an employee, or in the acceptance of or offering for work by an employee;

   (c)a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

   …

6. In response to that, Mr Ansorge, who appeared for Mr Raphael, contested that, in accordance with the authority in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Age Company Limited [2004] FCA 299, industrial action will not be industrial in character if it stands completely outside the area of disputation and bargaining. Ms Caylock submitted that the act of returning to work from an industrial action, namely the meeting in the car park of the prison, continues to have the same character as the meeting, because it was not something that Mr Raphael would ordinarily have done in the course of duties, if it were not for that meeting. In a sense, the argument was that his return to work, including going through security and the air lock and swiping in at a particular point, was no more than a continuation of the industrial action which had taken place outside the prison doors.

7. I disagree. In my view, the return to work by Mr Raphael, and particularly between the time of 10.15am and 10.16am or during the whole minute of 10.16am, if it can be broken down to that, did not constitute any limitation or restriction on the performance of work by him, and it was not a failure or refusal by him to attend to work or a failure or refusal to perform any work at all by employees, within the meaning of sub-ss.19(1)(b) or (c) of the Act.

8. It was admitted by the applicant and accepted by the respondent that the purpose of any particular action, in order to determine whether it might be characterised as industrial, must be taken into account.  In my view, having left the industrial stop work meeting at approximately 9.50am and taken the time to get through the security lock and all that entails in order to get to the prison, the purpose, and clearly the only purpose on the evidence of Mr Raphael, was to return to work, so that he could undertake any reasonable instruction on that day. 

9. For that reason, given that there was no industrial purpose or industrial nature of the action of Mr Raphael after 10.15am, that is after the expiry of the notice, he was not engaged in industrial action. For that reason it was not protected industrial action and, therefore, within the meaning of s.474 of the Act, there was no requirement under that provision on the respondent to refuse to pay him for four hours of that day. In light of that, the respondent has failed to comply with an obligation under s.323 of the Act to pay the applicant an amount owing to him for wages. I make a declaration to that effect.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 26 March 2015