Transport Workers Union of Australia v Glynburn Contractors (Salisbury) Pty Ltd
[1991] FCA 157
•12 APRIL 1991
Re: THE TRANSPORT WORKERS' UNION OF AUSTRALIA
And: GLYNBURN CONTRACTORS (SALISBURY) PTY. LTD.
No. D I2 of 1990
FED No. 157
Industrial Law
(1991) 37 IR 313
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
INDUSTRIAL DIVISION
Lee J.(1)
CATCHWORDS
Industrial Law - breach of award - penalty.
Industrial Relations Act 1988, s.178, sub-s.178(2)
Masters v Highway One Transport Pty. Ltd. (1990) 33 IR 1
HEARING
PERTH
#DATE 12:4:1991
Solicitors for the applicant: Waters James McCormack
Solicitors for the respondent: Crowe Hardy
ORDER
The respondent do pay to the applicant the following penalties:
Breach of clause 9 (Rates of Pay) $300 Breach of clause 10 (District Allowance) $100 Breach of clause 22 (Failure to Provide Uniform) $50
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
On 12 October 1990 I delivered principal reasons for judgment in which I found that Glynburn Contractors (Salisbury) Pty. Ltd. ("Glynburn") had breached the terms of the Transport Workers' (Passenger Vehicles) Award 1984 ("the Award").
Apart from an order that Glynburn pay one Thomas Kevin Bird a sum of $2,355.89, the application by the Transport Workers' Union of Australia ("the Union") for the recovery of a penalty to be imposed on Glynburn in respect of the said breach pursuant to s.178 of the Industrial Relations Act 1988 ("the Act") stood adjourned to allow counsel to make further submissions on the matter of penalty if they so desired.
I have now received submissions in writing from solicitors for the parties in respect of the question of penalty. The solicitors have delivered copies of the submissions to each other and the Court was informed that the parties do not require the Court to hear further oral submissions from counsel.
The Union submitted that the evidence upon which the Court found that breaches of the Award had been committed suggested that Glynburn had engaged in a systematic course of conduct which may have denied a number of other employees the benefits of appropriate conditions of service under the Award and urged that significant fines be imposed as an appropriate censure of such conduct.
Whatever suggestion the evidence may have raised, the Court's findings were based upon evidence which related to Thomas Kevin Bird only and as pointed out in the principal reasons for judgment the effect of contractual arrangements between Glynburn and other contractors would have to be assessed according to the facts relevant to each arrangement.
However, it was clear that the breaches of the Award did not result from a misunderstanding of the terms of the Award nor from the application of an erroneous construction to an ambiguous term in the Award. Glynburn's breaches did not result from an honest but mistaken belief as to its obligations under the Award.
Instead Glynburn's conduct was designed to establish a legal relationship between itself and Bird which would render the terms of the Award irrelevant.
The effect of the principal reasons for judgment was that in respect of Bird's circumstances the attempt to establish such a legal relationship amounted to little more than wishful thinking and at all times the terms of the Award remained relevant and applicable to Bird's employment.
Although Glynburn submitted that it believed that payments made to Bird exceeded its obligations under the Award, in fact they did not and a clear inference to be gained from the totality of the evidence is that the arrangements were designed for the benefit of Glynburn and its holding company, Bus Australia Limited.
I do not accept that in the circumstances it is appropriate that there be no penalty imposed. It would have been clear to any reasonably instructed officer of Glynburn that the circumstances of Bird's employment raised the real possibility that the legal documents in which the contract of employment was sought to be clothed would not prevent the Award from operating on that employment, being an award binding on Glynburn for some years and the terms of which were presumably well-known to it.
The three terms of the Award found to have been breached were clause 22 (Provision of a Uniform), clause 9 (Rates of Pay) and clause 10 (District Allowance).
The breach of clause 22 was not submitted to be of great significance and no more than a modest penalty should be imposed with respect to that breach.
Although breaches of separate terms of the Award were involved in breaches of clauses 9 and 10, in fact the breaches arose from a single action, namely the calculation of the remuneration offered to Bird for the hours and circumstances of his service. Because the breaches were not multiple breaches of a single term of the Award, the provisions of sub-s.178(2) of the Act do not apply but part of the policy reflected in sub-s.178(2) may be relevant where breaches of separate terms of an award arise out of a single action and it may be appropriate in the exercise of the discretion of fixing penalty to have regard to any interlocking relationship between such breaches. (See Masters v Highway One Transport Pty. Ltd. (1990) 33 IR 1.)
It was submitted and I agree that it was relevant to the exercise of that discretion to have some regard to the fact that this is the first occasion on which Glynburn has been found to have breached the Award.
I consider the following penalties to be appropriate and will make orders accordingly:
Breach of clause 9 (Rates of Pay) $300 Breach of clause 10 (District Allowance) $100 Breach of clause 22 (Failure to Provide Uniform) $ 50
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