Rickard v Cinalda Pty Ltd - [1990] FCA 7

JUDGMENT No 7 / 90

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
INDUSTRIAL DIVISION

No. ACT 14 of 1987

BETWEEN: JOHN STEPHEN RICKARD

Applicant

AND: CINALDA PTY LIMITED

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER       :           Neaves J
DATE OF ORDER                  :           29 January 1990
WHERE MADE  :           Canberra

THE COURT –

finds that the respondent committed breaches of clause 11(d)(1) of the Bakers (Australian Capital Territory) Award 1980 (“the Award”) in that –
(a)it required Ronald Cooper on each day he worked during the period between 10 December 1982 and 16 December 1983 to work more than five hours without a thirty minute meal break;
(b)it required David Luck on each day he worked during the period between 13 August 1982 and 30 April 1983 to work more than five hours without a thirty minute meal break;
(c)it required Harry Ritzau on each day he worked during the period between 28 November 1982 and 10 December 1982 to work more than five hours without a thirty minute meal break;
is of opinion that the said breaches arose out of a course of conduct by the respondent so that those breaches are, for the purposes of s.119 of the Conciliation and Arbitration Act 1904 (Cth) (“the Act”), to be treated as constituting a single breach of clause 11(d)(1) of the Award; and
imposes a penalty of $500 in respect of the said breach;
finds that the respondent committed breaches of clause 14(b) of the Award in that it failed, on or prior to each pay day during the period between 10 December 1982 and 16 December 1983, to provide to Ronald Cooper a statement in writing of the amount of wages to which he was entitled and the amount of deductions made therefrom;
is of opinion that the said breaches arose out of a course of conduct by the respondent so that those breaches are, for the purposes of s.119 of the Act, to be treated as a single breach of clause 14(b) of the Award; and
imposes a penalty of $500 in respect of the said breach;
finds that the respondent committed breaches of clause 24(b) of the Award in that –
(a)it failed between 10 December 1982 and 16 December 1983 to provide Ronald Cooper with over-clothing as specified in that clause;
(b)it failed between 3 October 1981 and 10 September 1982 to provide Shaun Edwards with over-clothing as specified in that clause;
(c)it failed between 13 August 1982 and 30 April 1983 to provide David Luck with over-clothing as specified in that clause;
(d)it failed between 28 November 1982 and 10 December 1982 to provide Harry Ritzau with over-clothing as specified in that clause;
is of opinion that the said breaches arose out of a course of conduct by the respondent so that those breaches are, for the purposes of s.119 of the Act, to be treated as a single breach of clause 24(b) of the Award; and
imposes a penalty of $500…

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 Rickard v Cinalda Pty Ltd

Details

AGLC: Rickard v Cinalda Pty Ltd [1990] FCA 7
Case: [1990] FCA 7
Decision Date: 29 January 1990

CaseChat Overview and Summary

The matter of Rickard v Cinalda Pty Ltd was heard in a court in Australia, where the plaintiff, Rickard, brought claims against the respondent, Cinalda Pty Ltd, for breaches of the Bakers (Australian Capital Territory) Award 1980. Rickard alleged that Cinalda Pty Ltd failed to comply with various provisions of the Award, including meal breaks, wage statements, and over-clothing. The court was required to determine whether Cinalda Pty Ltd had indeed breached the Award and, if so, the appropriate penalties to be imposed.

The court first examined whether Cinalda Pty Ltd had violated clause 11(d)(1) of the Award by requiring employees to work more than five hours without a meal break. It found that the respondent had breached this clause for multiple employees over specific periods, treating the breaches as a single course of conduct. The court then considered the failure to provide written wage statements as required by clause 14(b) of the Award. It concluded that these breaches also constituted a single course of conduct. Additionally, the court assessed breaches concerning the provision of over-clothing as stipulated in clause 24(b) and determined these to be a single breach as well. Lastly, it examined whether Cinalda Pty Ltd had failed to post a copy of the Award as required by clause 20(a).

The court found that Cinalda Pty Ltd had breached the Award in multiple instances, leading to penalties being imposed for each identified breach. For the meal break and wage statement breaches, a penalty of $500 was imposed for each, while a penalty of $500 was also imposed for the over-clothing breaches. Lastly, a penalty of $250 was imposed for the failure to post the Award. The court mandated that these penalties be paid into the Consolidated Revenue Fund within one month from the date of the order.

Orders

Orders of the court

THE COURT –

1. finds that the respondent committed breaches of clause 11(d)(1) of the Bakers (Australian Capital Territory) Award 1980 (“the Award”) in that –

(a) it required Ronald Cooper on each day he worked during the period between 10 December 1982 and 16 December 1983 to work more than five hours without a thirty minute meal break;

(b) it required David Luck on each day he worked during the period between 13 August 1982 and 30 April 1983 to work more than five hours without a thirty minute meal break;

(c) it required Harry Ritzau on each day he worked during the period between 28 November 1982 and 10 December 1982 to work more than five hours without a thirty minute meal break;

is of opinion that the said breaches arose out of a course of conduct by the respondent so that those breaches are, for the purposes of s.119 of the Conciliation and Arbitration Act 1904 (Cth) (“the Act”), to be treated as constituting a single breach of clause 11(d)(1) of the Award; and

imposes a penalty of $500 in respect of the said breach;

2. finds that the respondent committed breaches of clause 14(b) of the Award in that it failed, on or prior to each pay day during the period between 10 December 1982 and 16 December 1983, to provide to Ronald Cooper a statement in writing of the amount of wages to which he was entitled and the amount of deductions made therefrom;

is of opinion that the said breaches arose out of a course of conduct by the respondent so that those breaches are, for the purposes of s.119 of the Act, to be treated as a single breach of clause 14(b) of the Award; and

imposes a penalty of $500 in respect of the said breach;

3. finds that the respondent committed breaches of clause 24(b) of the Award in that –

(a) it failed between 10 December 1982 and 16 December 1983 to provide Ronald Cooper with over-clothing as specified in that clause;

(b) it failed between 3 October 1981 and 10 September 1982 to provide Shaun Edwards with over-clothing as specified in that clause;

(c) it failed between 13 August 1982 and 30 April 1983 to provide David Luck with over-clothing as specified in that clause;

(d) it failed between 28 November 1982 and 10 December 1982 to provide Harry Ritzau with over-clothing as specified in that clause;

imposes a penalty of $500 in respect of the said breach;

4. finds that the respondent committed a breach of clause 20(a) of the Award in that on 31 July 1984 it failed to have a copy of the Award, together with all variations thereof, posted in a prominent place in the bakery so as to be legible to the employees;

and imposes a penalty of $250 in respect of the said breach;

5. orders that each of the said penalties be paid into the Consolidated Revenue Fund;

6. directs that each of the penalties be paid within one month from the date of this order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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