Smith v Granada Tavern and Ors (No.2) - [2007] FMCA 904

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SMITH v GRANADA TAVERN & ORS (No.2)

[2007] FMCA 904

INDUSTRIAL LAW – Alleged application of duress on casual employee in connection with employee’s desire to enter into an Australian Workplace Agreement – nature of duress – duress established in respect of all three respondents.

Workplace Relations Act 1996 (Cth), ss.400(1), 400(5), 405 (1), 407(1), 826

Canturi and Another v Sita Bus Coaches Pty Ltd and Another [2002] 116 FCR 276
Jones v Dunkel (1959) 101 CLR 298
Australian Securities and Investment Commission v Adler and Others [2002] 168 FLR 253
Dilosa v Latec Finance Pty Ltd (No 1) (1996) 84 WN (NSW) (Pt 1) 557
SS. Pharmaceutical Co. Ltd & Another v Qantas Airways Ltd (1991) Vol.1 288
Insurance Commissioner v Joyce [1948] 77 CLR 39
Shanka v Employment National (Administration) Pty Ltd (1999) 166 ALR 663
Shanka v Employment National (Administration) Pty Ltd (2000) 170 ALR 42
Balding v Ten Talents Pty Ltd & Anor [2007] FMCA 145
Finance Sector Union v Commonwealth Bank of Australia [2000] FCA 1468
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Briginshaw v Briginshaw and Another (1938) 60 CLR 336
Fox v Percy (2003) 214 CLR 118

Applicant:

INSPECTOR RAYMOND MURRAY SMITH

First Respondent:

ACN 090 444 518 PTY LTD
T/AS GRANADA TAVERN

Second Respondent:

MICHAEL DAVID HIBBERD

Third Respondent:

JOCELYN MAREE BERECHREE

File number:

LNG 39 of 2006

Judgment of:

Burchardt FM

Hearing dates:

8 December 2006, 6 February 2007,
2, 3, 4 April 2007 & 3 May 2007.

Date of last submission:

3 May 2007

Delivered at:

Melbourne

Delivered on:

19 June 2007 (via video-link to Hobart)

REPRESENTATION

Counsel for the Applicant:

Mr J. Bourke & Mr M. Felman

Solicitors for the Applicant:

Clayton Utz Lawyers

Counsel for the First & Second Respondents:

Mr N.J. Clelland SC, with Mr G.H. Livermore

Solicitors for the First & Second Respondents:

Simmons Wolfhagen

Counsel for the Third Respondent:

Ms K. Baumeler

Solicitors for the Third Respondent:

Butler, McIntyre & Butler

ORDERS

The Court declares that each of the Respondents has contravened s.400(5) of the Workplace Relations Act 1966 (Cth) for the reasons set out in the Court’s reasons for judgment.
The matter is listed for further hearing on 2 July 2007 at 10.15 am.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

LNG 39 of 2006

INSPECTOR RAYMOND MURRAY SMITH

Applicant

And

ACN 090 44 518 PTY LTD T/AS GRANADA TAVERN

First Respondent

MICHAEL DAVID HIBBERD

Second Respondent

JOCELYN MAREE BERECHREE

Third Respondent

REASONS FOR JUDGMENT

Introductory

On 17 October 2006 the Applicant filed an application and an affidavit in support in this proceeding. Those documents are the prescribed documents to commence a proceeding in this Court.
Paragraph 1 of the application specified that it was made under s.405(1)(f) of the Workplace Relations Act 1996 (Cth) ("the Act") and related to alleged contraventions of s.400(5) of the Act.
Paragraph 2 of the application sought that, in accordance with s.407(1) of the Act, penalties be…

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: [2007] FMCA 904
Decision Date: 19 June 2007

CaseChat Overview and Summary

The case of Smith v Granada Tavern and Ors (No.2) involved a dispute between the plaintiff, Smith, and three respondents: Granada Tavern, and two other entities. The primary contention was that the respondents had contravened section 400(5) of the Workplace Relations Act 1996 (Cth). The dispute centred on the respondents' failure to comply with certain workplace obligations and the alleged contravention of specific provisions in the Act. The case was heard in the Federal Court of Australia, where the plaintiff sought declarations of contravention and remedies under the Act.

The legal issues before the Court required it to determine whether the respondents had indeed contravened section 400(5) of the Act, which pertains to workplace obligations. The Court needed to interpret the relevant provisions of the Act and assess the evidence presented to ascertain whether the respondents' actions warranted a finding of non-compliance. Additionally, the Court had to consider the appropriate remedies if it found that the respondents had indeed contravened the Act.

In its judgment, the Court meticulously examined the evidence and applicable legal principles. It found that the respondents had failed to adhere to the obligations set out in section 400(5) of the Workplace Relations Act 1996 (Cth). The Court was satisfied that the respondents' actions constituted a contravention of the Act based on the specific criteria outlined in the legislation. Consequently, the Court declared that each respondent had contravened the relevant provision. The matter was scheduled for a further hearing to address any additional remedies or enforcement actions.

Orders

Orders of the court

The Court declares that each of the Respondents has contravened s.400(5) of the Workplace Relations Act 1966 (Cth) for the reasons set out in the Court’s reasons for judgment.

The matter is listed for further hearing on 2 July 2007 at 10.15 am.

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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