Stuart v L.U. Simon Builders Pty Ltd - [2009] FCA 107

FEDERAL COURT OF AUSTRALIA
Stuart v L.U. Simon Builders Pty Ltd [2009] FCA 107
Building and Construction Industry Improvement Act 2005 (Cth) ss 45(1)(a), 49
KAREN STUART v L.U. SIMON BUILDERS PTY LTD
VID 462 of 2008
MARSHALL J
17 FEBRUARY 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 462 of 2008

BETWEEN:
KAREN STUART
Applicant

AND:
L.U. SIMON BUILDERS PTY LTD
Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

17 FEBRUARY 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.It is declared that by refusing to allow Mr Vanderkley and his employees entry to the Aquavista site at 401 Docklands Drive, Docklands in Victoria on 6, 9 and 22 March 2007, the Respondent contravened s 45(1)(a)(i) of the Building and Construction Industry Improvement Act 2005 (Cth), (“BCII Act”) by discriminating against Mr Vanderkley on the ground that Mr Vanderkley’s employees were not covered by a workplace agreement.
2.It is declared that by terminating or varying its contract with Axiom Design on 22 March 2007, so as to remove the need for Mr Vanderkley to install balustrades and handrails at the Aquavista Site, the Respondent contravened s 45(1)(a)(i) of the BCII Act by discriminating against Mr Vanderkley on the ground that Mr Vanderkley’s employees were not covered by a workplace agreement.
3.Subject to paragraph 4, a penalty of $55,000 is imposed on the Respondent in respect of the contraventions of s 45(1)(a)(i) of the BCII Act, such penalty to be paid into the Consolidated Revenue Fund on or before 19 March 2009.
4.Notwithstanding the order in paragraph 3, the Respondent is not obliged to pay $27,500 (being one half of the penalty) if between 17 March 2009 and 17 March 2010 it has not been adjudged to have contravened any provision of the BCII Act or the Workplace Relations Act 1996 (Cth).

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

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IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 462 of 2008

BETWEEN:
KAREN STUART
Applicant

AND:
L.U. SIMON BUILDERS PTY LTD
Respondent

JUDGE:

MARSHALL J

DATE:

17 FEBRUARY 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The applicant, Ms Stuart, applies pursuant to s 49 of the Building and Construction Industry Improvement Act 2005 (Cth) (“the Act”) for the imposition of pecuniary penalties on the respondent, L.U. Simon Builders Pty Ltd (“L.U. Simon”) for contraventions of s 45(1)(a) of the Act.
Ms Stuart is an inspector appointed under s 57 of the Act and is entitled to bring this proceeding under s 49(6)(b) of the Act. L.U. Simon is a constitutional corporation which operates in the building and construction industry. In 2006, L.U. Simon managed a building project at 401 Docklands Drive, Docklands (“the Aquavista site”).
Factual Background
On or about 13 September 2006, L.U. Simon contracted with The Trustee of the McAlpin Family Trust trading as Axiom Design (“Axiom”) for 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.

Continue reading Stuart v L.U. Simon Builders Pty Ltd

Details

AGLC: Stuart v L.U. Simon Builders Pty Ltd [2009] FCA 107
Case: [2009] FCA 107
Decision Date: 17 February 2009

CaseChat Overview and Summary

Ms Stuart brought this proceeding against L.U. Simon Builders Pty Ltd in relation to the refusal of entry to the Aquavista site on 6, 9, and 22 March 2007 and the termination of its contract with Axiom Design on 22 March 2007, which resulted in Mr Vanderkley and his employees being denied access to the site to perform building work. The dispute was heard in the Federal Circuit Court of Australia, where the primary concern was whether L.U. Simon's actions constituted a contravention of the Building and Construction Industry Improvement Act 2005 (Cth).

The court was required to determine whether L.U. Simon's refusal to allow Mr Vanderkley and his employees entry to the Aquavista site, as well as the termination of its contract with Axiom Design, constituted discrimination against Mr Vanderkley under s 45(1)(a)(i) of the BCII Act. This required an examination of the definition of a workplace agreement under s 4 of the Act and whether the employment of Mr Grubits and Mr Conduit fell within this definition.

The court found that L.U. Simon's refusal to allow Mr Vanderkley and his employees entry to the Aquavista site on the grounds that their employment was not covered by a workplace agreement constituted discrimination under s 45(1)(a)(i) of the BCII Act. The court also found that the termination of the contract with Axiom Design, which resulted in Mr Vanderkley and his employees being denied access to the site, further constituted discrimination under the same provision. The court imposed a penalty of $55,000 on L.U. Simon for these contraventions, with the possibility of a reduced penalty if no further contraventions are found within the specified period.

In conclusion, the court found that L.U. Simon contravened s 45(1)(a)(i) of the BCII Act by discriminating against Mr Vanderkley on the ground that his employees were not covered by a workplace agreement. The court declared that L.U. Simon's conduct constituted discrimination and imposed a penalty of $55,000, with the possibility of a reduced penalty if no further contraventions occur within the specified period.

Orders

Orders of the court

1. It is declared that by refusing to allow Mr Vanderkley and his employees entry to the Aquavista site at 401 Docklands Drive, Docklands in Victoria on 6, 9 and 22 March 2007, the Respondent contravened s 45(1)(a)(i) of the Building and Construction Industry Improvement Act 2005 (Cth), (“BCII Act”) by discriminating against Mr Vanderkley on the ground that Mr Vanderkley’s employees were not covered by a workplace agreement.

2. It is declared that by terminating or varying its contract with Axiom Design on 22 March 2007, so as to remove the need for Mr Vanderkley to install balustrades and handrails at the Aquavista Site, the Respondent contravened s 45(1)(a)(i) of the BCII Act by discriminating against Mr Vanderkley on the ground that Mr Vanderkley’s employees were not covered by a workplace agreement.

3. Subject to paragraph 4, a penalty of $55,000 is imposed on the Respondent in respect of the contraventions of s 45(1)(a)(i) of the BCII Act, such penalty to be paid into the Consolidated Revenue Fund on or before 19 March 2009.

4. Notwithstanding the order in paragraph 3, the Respondent is not obliged to pay $27,500 (being one half of the penalty) if between 17 March 2009 and 17 March 2010 it has not been adjudged to have contravened any provision of the BCII Act or the Workplace Relations Act 1996 (Cth).

Note:

Background

Background to the litigation

Ms Stuart is an inspector appointed under s 57 of the Act and is entitled to bring this proceeding under s 49(6)(b) of the Act. L.U. Simon is a constitutional corporation which operates in the building and construction industry. In 2006, L.U. Simon managed a building project at 401 Docklands Drive, Docklands (“the Aquavista site”).Factual Background On or about 13 September 2006, L.U. Simon contracted with The Trustee of the McAlpin Family Trust trading as Axiom Design (“Axiom”) for the supply and installation of glass balustrade and steel handrail to the level 15 mezzanine stairs at the Aquavista site. Axiom further contracted with Mr Vanderkley for him to construct and install the glazed balustrade and steel handrail. Mr Vanderkley employed Mr Grubits and Mr Conduit to perform the relevant work. Mr Grubits and Mr Conduit were “building employees” for the purpose of s 4 of the Act and the work which they were to perform was “building work” for the purpose of s 5 of the Act. Mr Vanderkley and Mr Grubits attended the Aquavista site on 6 March 2007 to perform the relevant work. A managerial employee of L.U. Simon, Mr Frank Akbari, told Mr Vanderkley and Mr Grubits that they could not commence work on the site without certain documents, including an enterprise bargaining agreement (“EBA”). On 8 March 2007, Mr Vanderkley provided to L.U. Simon certificates of currency of public liability insurance, workcover insurance, and superannuation (CBUS) payments. On 9 March 2007, Mr Vanderkley and Mr Grubits attended the Aquavista site to commence work. Mr Mark Hickey, the site foreman, told Mr Vanderkley that he still did not have an EBA. The site manager, Mr Robert Purves, told Mr Vanderkley that in order to get on to the site and perform the relevant work he had to, amongst other things, procure an EBA. On 22 March 2007, Mr Vanderkley and Mr Conduit attended the site to perform the relevant work. By that date, Mr Vanderkley had provided to L. U. Simon all documents required, other than a copy of an EBA. While waiting in the induction room before being inducted onto the Aquavista site, Mr Purves asked him to come outside. Mr Purves told Mr Vanderkley that L.U. Simon did not have a contract with him and that therefore he could not be inducted onto the site. This is because L.U. Simon had terminated its contract with Axiom.Contraventions of the Act L.U. Simon admits that it refused to allow Mr Vanderkley and his employees access to the Aquavista site to perform building work on the ground that the employment of Mr Grubits and Mr Conduit was not covered by a particular kind of industrial instrument, being a workplace agreement as defined by s 4 of the Act. L.U. Simon further admits that the conduct referred to in the preceding paragraph constituted discrimination against Mr Vanderkley for the purpose of s 45(1) of the Act on the ground that the employment of Mr Grubits and Mr Conduit was not covered by a particular kind of industrial instrument, being a workplace agreement as defined by s 4 of the Act.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

MARSHALL J

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Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 462 of 2008

BETWEEN:	KAREN STUART Applicant
AND:	L.U. SIMON BUILDERS PTY LTD Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	17 FEBRUARY 2009
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	17 FEBRUARY 2009
PLACE:	MELBOURNE