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 –

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;

   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 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.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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

CORAM          :           Neaves J
DATE             :           29 January 1990

REASONS FOR JUDGMENT

This is the further hearing, consequent upon the judgment given y a Full Court of this Court on 22 September 1989, of the proceeding brought pursuant to sub-s.119(1) of the Conciliation and Arbitration Act 1904 (Cth) (“the Act”) by John Stephen Rickard (“the applicant”) against Cinalda Pty Limited (“the respondent”) to recover penalties for breaches of the terms of the Bakers (Australian Capital Territory) Award 1980 (“the Award”).

For the reasons set out in y judgment delivered herein on 0 March 1989, I find that the following breaches of the terms of the Award –

(a)Breaches of clause 11(d)(I in that –

(i)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

(ii)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;

(iii)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;

(b)Breaches of clause 14(b) 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.

(c)Breaches of clause 24(b) in that –

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

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

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

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

(d)A breach of clause 20(a) 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.

In the judgment to which I have referred, I also considered the allegations that the respondent had committed breaches of clause 14(a) of the Award in respect of four employees, Shaun Edwards, David Campbell Luck, Harry Ritzau and Ronald Patrick Cooper. I concluded that the allegations so far as they concerned Messrs Edwards, Luck and Cooper had not been established for the reason that those employees did not fall within the classification in the award on which the applicant relied. I did, however, find that Mr Ritzau was employed on duties falling within the classification alleged by the applicant, namely that of operative baker. I did not go on to deal with the question whether, in the light of that finding, the applicant had established that the respondent had failed to pay to Mr Ritzau all the wages, including payments for overtime, due to him under the Award. It is necessary now to consider that question.

Mr Ritzau was employed by the respondent for a period of two weeks only, although, as mentioned in my earlier judgment, the earlier evidence is not entirely clear as to the precise dates of his employment. Although Mr Ritzau gave evidence that he worked on each day, Monday to Friday inclusive, during each week, his evidence as to his daily hours of work was indecisive notwithstanding that he was permitted to refresh his memory from a document prepared by him contemporaneously with the termination of his employment with the respondent. Clearly, the assertions made in the amended statement of claim as to the amounts payable to Mr Ritzau under the Award have not been established. The evidence is sufficient only to warrant a finding that he was entitled to be paid, in respect of each week of his employment, a weekly rate of wages as an operative baker (clause 5(a) of the Award) of $206.40, an allowance of $61.92 under clause 5(b)(ii) by reason of his working of ordinary time before 5 a.m. and a laundry allowance of $2.00 (clause 24(b)). The state of the evidence as to Mr Ritzau’s hours of work makes it impossible to determine the amount to which he was entitled in each week by way of overtime.

The evidence as to the amounts paid or credited to him by way of remuneration in respect of each of the two weeks he was employed is also unsatisfactory and is insufficient to satisfy me that there was an underpayment and, if so, the amount of it.

In the circumstances, the applicant has failed to discharge the onus resting upon him to establish, in respect of Mr Ritzau, that there was a breach of clause 14(a) of the Award.

Sub-section 119(1A) of the Act provides:

“I1A) Subject to sub-sections (1B) and (1C), where a Court finds that 2 or more breaches by the same organization or person of a term of an order or award have been committed and those breaches appear to that Court to have arisen out of a course of conduct by that organization or person, those breaches shall, for the purposes of this section, be treated as constituting a single breach of that term.”

It may be accepted that sub-ss. (1B) and (1C) have no application to the present case.

There is no doubt, on the evidence before the Court, that the respondent, throughout the period in question, consistently acted on the basis that the employees the subject of the charges which I have found to have been proved was not regulated by an industrial award. It, therefore, appears to me that the various breaches of clause 11(d)(i) of the Award arose out of a course of conduct by the respondent and are to be treated as one breach: Quinn v. Martin (1977) 31 F.L.R. 24; Lynch v. Buckley Sawmills Pty Ltd (1984) 3 F.C.R. 503. The various breaches of clause 14(b) are to be similarly treated as are the various breaches of clause 24(b). It follows that, in determining the penalties to be imposed, the respondent is to be treated as having committed a single breach of clause 11(d)(i), a single breach of clause 14(b) and a single breach of clause 24(b). In addition the respondent has been found to have committed a breach of clause 20(a).

The maximum penalty that may be imposed in respect of each rbeach of the Award is $1,000 (sub-s.119(1D)(a)).

In determining what penalties should be imposed, I have taken into account the matters in mitigation referred to by Mr Refshauge on behalf of the respondent. In particular, I have taken into account that, although clause 11(d)(i) was not complied with in that no meal break of 30 minutes was allowed to the employees concerned, those employees were permitted by the respondent to, and they did in fact, when it was convenient to do so, take short breaks during their hours of employment. I have already mentioned that the respondent consistently acted on the basis that the terms and conditions of employment were not to be found in an industrial award. However, it must be said that the respondent does not appear to have made any enquiries, or to have sought legal advice, whether the position it had taken was justifiable. The breaches took place over a considerable period of time and I cannot but regard them as serious.

In respect of the breach of clause 11(d)(i), I impose a penalty of $500. I impose similar penalties in respect of the breach of clause 14(b) and in respect of the breach of clause 24(b). In respect of the breach of clause 20(a), a penalty of $250 is, in my opinion, appropriate.

The total amount of the penalties imposed is, therefore, $1,750. Under s.120 of the Act it is ordered that each penalty imposed be paid into the Consolidated Revenue Fund. The respondent will have one month from the date of this order within which to pay the penalties imposed.

I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves.

Associate
Dated 29 January 1990

Counsel for the applicant: Mr C M Erskine
Solicitor for the applicant: Australian Government Solicitor
Counsel for the respondent: Mr R C Refshauge
Solicitors for the respondent: Macphillamy Cummins

Date of hearing: 14 November 1989
Date of judgment: 29 January 1990