Transport Workers' Union of Australia v Bluehaven Transport Pty Ltd

[1999] FCA 565

FEDERAL COURT OF AUSTRALIA

Transport Workers' Union of Australia v Bluehaven Transport Pty Ltd [1999] FCA 565

TRANSPORT WORKERS’ UNION OF AUSTRALIA V BLUEHAVEN TRANSPORT
PTY LTD ACN 065 915 353

QG 52 OF 1998

SPENDER J
30 APRIL 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 52 OF 1998

BETWEEN:	TRANSPORT WORKERS' UNION OF AUSTRALIA Applicant
AND:	BLUEHAVEN TRANSPORT PTY LTD ACN 065 915 353 Respondent
JUDGE:	SPENDER J
DATE OF ORDER:	30 APRIL 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Pursuant to s 298U(a) of the Workplace Relations Act 1996 a penalty of $2,500.00 be imposed on the respondent.

2.Pursuant to s 298U(c) of the Workplace Relations Act 1996 the respondent pay to Leon Michael Fitzgerald the sum of $2,500.00 compensation.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 52 OF 1998

BETWEEN:	TRANSPORT WORKERS' UNION OF AUSTRALIA Applicant
AND:	BLUEHAVEN TRANSPORT PTY LTD ACN 065 915 353 Respondent

JUDGE:	SPENDER J
DATE:	30 APRIL 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. As a result of negotiations between the parties, the present matter is able to be resolved very shortly. The Transport Workers' Union of Australia applied on 2 June 1998 for various orders pursuant to s 298U of the Workplace Relations Act 1996 (“the Act”) seeking, amongst other things, the imposition on Bluehaven Transport Pty Ltd (“Bluehaven Transport”) of a penalty and an order that Bluehaven Transport “…pay to Leon Michael Fitzgerald compensation of such amount as the Court thinks appropriate”. 

2. When the matter was called on this morning, the applicant obtained leave in respect of the filing of an amended statement of claim.  That document was filed on 23 April 1999.  It asserts that Leon Michael Fitzgerald was a member of the applicant union, and “[o]n or about 10 October 1997, [he and Bluehaven Transport] entered into a contract for services… whereby it was agreed that [Mr Fitzgerald] would perform work for [Bluehaven Transport] as a courier driver”.  On 9 December 1997 the applicant pleads that Bluehaven Transport terminated that agreement.  It is said that the termination was contained in two oral conversations: one between Mr Fitzgerald and Mr Trevor Ford and a subsequent conversation between Mr Fitzgerald, Mr Ford and a Mr Gregory William Ingram.

3. The statement of claim alleges that the termination of the agreement by the respondent was for “prohibited reasons” or for reasons that included “prohibited reasons” within the meaning of s 298L of the Act, being that Mr Fitzgerald was a member of the applicant union, the applicant was seeking better industrial conditions, and Mr Fitzgerald was a member of the applicant and was dissatisfied with his conditions.

4. When the matter was called on this morning, Mr Herbert, counsel for the respondent, indicated that it proposed to call no evidence. The consequence of that course is that s 298V of the Act presumes that the conduct in question was carried out for a prohibited reason or for reasons which included a prohibited reason.

5. That reverse onus provision has the effect then of establishing the basis on which the Court might make orders under s 298U. The position, however, is that the basis on which the Court is to impose a penalty or order compensation is factually very stark. In those circumstances, it is relevant, in my view, that the applicant seeks an order that, pursuant to s 298U(a) of the Workplace Relations Act, a penalty of $2500 be imposed on the respondent and, pursuant to s 298U(c) of the Workplace Relations Act 1996, the respondent pay to Leon Michael Fitzgerald the sum of $2500 as compensation.  The making of those orders by the Court is not opposed by counsel for the respondent.

6. In those circumstances, it seems to me that it would be proper for the Court to make those orders, they essentially being the result of arms-length negotiations between the parties, who have, I infer, been properly informed by competent and experienced counsel as to the nature of the jurisdiction and the likely orders that the Court might make at the end of the day after a full fight.

7. I make the following orders:

   1. Pursuant to s 298U(a) of the Workplace Relations Act 1996 a penalty of $2,500.00 be imposed on the respondent.

   2. Pursuant to s 298U(c) of the Workplace Relations Act 1996 the respondent pay to Leon Michael Fitzgerald the sum of $2,500.00 compensation.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:             30 April 1999

Counsel for the Applicant:	Mr P D T Applegarth
Solicitor for the Applicant:	Reidy & Tonkin
Counsel for the Respondent:	Mr A K Herbert
Solicitor for the Respondent:	Carne & Herd
Date of Hearing:	30 April 1999
Date of Judgment:	30 April 1999