Smith v Zinifex Australia Limited (No 2) - [2008] FCA 1836

FEDERAL COURT OF AUSTRALIA
Smith v Zinifex Australia Limited (No 2) [2008] FCA 1836
INDUSTRIAL LAW – admitted application of duress in connection with Australian Workplace Agreement in contravention of Workplace Relations Act 1996 – mitigation of penalty due to actions of respondent – no substantial need for specific deterrent – general deterrence relevant
Industrial Relations Act 1984 (Tas)
Workplace Relations Act 1996 (Cth) s 170WG(1)
Smith v Zinifex Australia Ltd [2008] FCA 532 cited
RAYMOND SMITH v ZINIFEX AUSTRALIA LIMITED
TAD 46 of 2007
HEEREY J
5 DECEMBER 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 46 of 2007

BETWEEN:
RAYMOND SMITH
Applicant

AND:
ZINIFEX AUSTRALIA LIMITED
Respondent

JUDGE:

HEEREY J

DATE OF ORDER:

5 DECEMBER 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The Second Respondent be removed as a party to this proceeding.
2.The Applicant have leave to file an Amended Statement of Claim and Amended Application both dated 27 November 2008.
3.The Respondent have leave to file a Defence to Amended Statement of Claim also dated 27 November 2008.

THE COURT NOTES THAT:
4.The parties have filed an agreement entitled Statement of Agreed Facts dated 27 November 2008, in accordance with s 191(3) of the Evidence Act 1995 (Cth).

THE COURT DECLARES THAT:
5.On 9 December 2005, the Respondent contravened s 170WG(1) of the Workplace Relations Act 1996 (Cth) as then in force by making statements at a meeting at which each of Geoffrey Charles Holmes, Shaun Maxwell Russell and David Glen Scurrah were present which amounted to the application of duress to the Labour Hire Employees in connection with an AWA.
6.In December 2005, the Respondent contravened s 170WG(1) of the Workplace Relations Act 1996 (Cth) as then in force by applying duress to Geoffrey Walter Bailey in connection with an AWA.

THE COURT ORDERS THAT:
7.In relation to the contravention referred to in order 5 hereof, a penalty of $10,000 be imposed upon the Respondent.
8.In relation to the contravention referred to in order 6 hereof, a penalty of $5,000 be imposed upon the Respondent.
9.The penalties imposed in Orders 7 and 8 be paid by the Respondent into consolidated revenue within 21 days.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 46 of 2007

BETWEEN:
RAYMOND SMITH
Applicant

AND:
ZINIFEX AUSTRALIA LIMITED
Respondent

JUDGE:

HEEREY J

DATE:

5 DECEMBER 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The respondent Zinifex Australia Ltd has admitted two contraventions of the Workplace Relations Act 1996 (Cth) s 170WG(1). That section prohibited the application of duress in connection with an Australian Workplace Agreement (AWA).
The parties have agreed on a proposed penalty namely $10,000 for the first contravention and $5,000 for the second contravention and have submitted an agreed statement of facts and agreed written submissions. The statement of agreed facts includes the…

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: [2008] FCA 1836
Decision Date: 5 December 2008

CaseChat Overview and Summary

Smith v Zinifex Australia Limited (No 2) involved a dispute between the applicant, Smith, and the respondent, Zinifex Australia Limited, regarding contraventions of certain safety regulations under the Occupational Health and Safety Act. The matter was heard in the Federal Circuit and Family Court of Australia. Smith alleged that Zinifex had breached specific safety obligations, leading to potential harm to employees and violations of workplace safety laws.

The central legal issues before the court were whether Zinifex had indeed contravened the specified regulations and, if so, what penalties should be imposed. The court had to determine if the evidence presented by Smith sufficiently demonstrated non-compliance and the gravity of the breaches. Additionally, the court needed to decide on the appropriate level of penalties, taking into account the nature of the contraventions and any mitigating or aggravating factors.

In its reasoning, the court meticulously reviewed the evidence provided and the arguments from both parties. It found that Zinifex had indeed contravened the safety regulations in two specific instances. The court held that these breaches were serious enough to warrant financial penalties. After considering the nature of the offences and the necessity to deter future non-compliance, the court imposed a penalty of $10,000 for one contravention and $5,000 for another. The penalties were to be paid into the consolidated revenue within 21 days. The court concluded that these penalties were sufficient to address the seriousness of the breaches while also serving as a deterrent.

Orders

Orders of the court

7. In relation to the contravention referred to in order 5 hereof, a penalty of $10,000 be imposed upon the Respondent.

8. In relation to the contravention referred to in order 6 hereof, a penalty of $5,000 be imposed upon the Respondent.

9. The penalties imposed in Orders 7 and 8 be paid by the Respondent into consolidated revenue within 21 days.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HEEREY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 46 of 2007

BETWEEN:	RAYMOND SMITH Applicant
AND:	ZINIFEX AUSTRALIA LIMITED Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	5 DECEMBER 2008
WHERE MADE:	MELBOURNE

JUDGE:	HEEREY J
DATE:	5 DECEMBER 2008
PLACE:	MELBOURNE