TWUA v Blue Collar Recruitment Pty Ltd
[2009] FMCA 824
•27 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TWUA v BLUE COLLAR RECRUITMENT PTY LTD | [2009] FMCA 824 |
| INDUSTRIAL LAW – Union collective agreement – lodgment without employees’ prior approval – contravention of Workplace Relations Act – civil remedy proceedings for pecuniary penalty – continued operation of provisions of Workplace Relations Act following repeal by Fair Work (Transitional Provisions & Consequential Amendments) Act. |
| Workplace Relations Act 1996, ss.328, 341, 340, 347, 405, 407, 841, sch.1, sch.7A, sch.7B Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008, item 15, sch.1 |
| Kelly v Fitzpatrick (2007) 166 IR 14 Mason v Harrington Corporation Pty Limited [2007] FMCA 7 A&L Silvestri Pty Limited v Construction, Forestry, Mining & Energy Union [2008] FCA 466 CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 Transport Workers Union of Australia v DHL Exel Supply Chain (Australia) Pty Ltd (No.2) [2008] FMCA 920 |
| Applicant: | TRANSPORT WORKERS UNION OF AUSTRALIA |
| First Respondent: | BLUE COLLAR RECRUITMENT PTY LTD ACN 105 263 152 |
| File Number: | SYG 905 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 28 July 2009 |
| Date of Last Submission: | 28 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Hatcher |
| Solicitors for the Applicant: | Maurice Blackburn |
| Counsel for the Respondent: | Mr I. Latham |
| Solicitors for the Respondent: | Gillis Delaney |
ORDERS
THE COURT DECLARES THAT:
The Blue Collar Recruitment Agreement 2007 entered into by the parties on 1 April 2008 is a union collective agreement pursuant to the Workplace Relations Act 1996.
THE COURT ORDERS THAT:
The respondent pay a pecuniary penalty of $12,000.
The respondent pay the penalty ordered in order 1 to the applicant within twenty-eight days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 905 of 2008
| TRANSPORT WORKERS UNION OF AUSTRALIA |
Applicant
And
| BLUE COLLAR RECRUITMENT PTY LTD ACN 105 263 152 |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
The applicant (“TWUA”) is an organisation of employees registered pursuant to sch.1 to the Workplace Relations Act 1996 (“WRA”). On or about 14 April 2008, one of the TWUA’s members who was employed by the respondent (“Blue Collar”), requested the TWUA to make an application to the Court for an order that Blue Collar pay a pecuniary penalty for having breached s.341(1) of the WRA. The alleged breach concerned an agreement entered into between the TWUA and Blue Collar on 3 April 2007, the Blue Collar Recruitment Agreement 2007 (“Agreement”).
The TWUA brings these proceedings to obtain a declaration that the Agreement is a union collective agreement under the WRA. The TWUA also seeks the imposition of a civil penalty on Blue Collar pursuant to s.407(1)(b) of the WRA by reason of Blue Collar’s contravention of s.341(1) of the WRA. In this regard, the TWUA alleges that Blue Collar lodged the Agreement with the Employment Advocate without having first obtained the required approval of those of its employees who would be covered by it.
For the reasons which follow, Blue Collar will be ordered to pay a pecuniary penalty of $12,000.
Statutory provisions
At the relevant time, s.328 of the WRA provided:
328 Union collective agreements
An employer may make an agreement (a union collective agreement) in writing with one or more organisations of employees if, when the agreement is made, each organisation:
(a) has at least one member whose employment in a single business (or part of a single business) of the employer will be subject to the agreement; and
(b) is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement.
At the relevant time, s.341 of the WRA provided:
341 Employer must not lodge unapproved agreement
(1) An employer contravenes this subsection if:
(a) the employer lodges a workplace agreement (other than a greenfields agreement); and
(b) the agreement has not been approved in accordance with section 340.
(2) Subsection (1) is a civil remedy provision.
At the relevant time, s.340 of the WRA relevantly provided:
340 Approval of a workplace agreement
(1) …
(2) An employee collective agreement or union collective agreement is approved if:
(a) the employer has given all of the persons employed at the time whose employment will be subject to the agreement a reasonable opportunity to decide whether they want to approve the agreement; and
(b) either:
(i) if the decision is made by a vote – a majority of those persons who cast a valid vote decide that they want to approve the agreement; or
(ii) otherwise – a majority of those persons decide that they want to approve the agreement.
These provisions predated and were relevantly unaffected by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008: vide item 15 of sch.1 to that Act and schs.7A and 7B to the WRA. However, since these proceedings were commenced, all of the provisions quoted above have been repealed by sch.1 to the Fair Work (Transitional Provisions & Consequential Amendments) Act 2009 (“Fair Work (TPCA) Act”). Nevertheless, item 11 of sch.2 to the Fair Work (TPCA) Act provides that the WRA continues to apply on and after its repeal in relation to conduct that occurred before the repeal. Consequently, the WRA continues to apply to these proceedings and to the issues which the proceedings raise.
Background facts
Blue Collar employs staff who are lent on hire to operators in the Australian airline industry to perform ground handling and baggage handling services at Australian airports. In or about November or December 2006, the TWUA and Blue Collar commenced negotiations for an agreement to cover persons performing baggage handling and ground handling services as employees of Blue Collar at airports in Australia.
In or about late March 2007, the TWUA and Blue Collar concluded negotiations for the Agreement. On or about 21 March 2007, Blue Collar held a meeting with prospective employees who would provide baggage handling and ground handling services for Blue Collar to Virgin Blue Airlines (“Virgin Blue”) in the Virgin Blue baggage room at Melbourne Airport pursuant to a contract between Blue Collar and Virgin Blue (“Virgin Blue Contract”).
On or about 1 April 2007, Blue Collar commenced providing baggage handling and ground handling services under the Virgin Blue Contract and for that purpose started to employ persons to perform baggage handling and ground handling duties in the Virgin Blue baggage room at Melbourne Airport.
On 3 April 2007, Blue Collar entered into the Agreement with the TWUA. On 4 June 2007 Blue Collar lodged the Agreement with the Office of the Employment Advocate representing that it was, in fact, a union greenfields agreement.
The parties agree that the Agreement was, in fact, a union collective agreement and not a union greenfields agreement. They also agree that Blue Collar did not take, in accordance with ss.340 and 341 of the WRA and prior to lodgment of the Agreement, the steps necessary to have the Agreement approved by those of its employees who would be covered by it.
The parties also agreed that one of Blue Collar’s employees
23.… is and has been at all relevant times, including at the time the Agreement was entered into,
(a) a member of the TWUA, and
(b) an employee of Blue Collar covered by the Agreement.
and had, on or about 14 April 2008
24.… requested that the TWUA make an application to the Court for an order that Blue Collar pay a pecuniary penalty for a breach of section 341 of the Act.
These and other matters appear in the statement of agreed facts filed by the parties on 16 June 2009, a copy of which is Annexure A to these reasons.
It is apparent from the statement of agreed facts, and from the nature of the work covered by the Agreement, that Blue Collar’s employees would fall into a class of persons entitled to be members of the TWUA. Further, by reason of the request of the Blue Collar employee referred to above at [13], s.405 of the WRA provides the TWUA with standing to bring these proceedings.
Union collective agreement
The parties have agreed, and I accept, that the TWUA is entitled to represent the industrial interests of its members who perform work in the airline industry including but not limited to ground handling and baggage handle services.
Given this and other facts agreed by the parties, I am satisfied that the Agreement is a union collective agreement under the WRA and there will be a declaration accordingly.
At the hearing, there was discussion concerning whether a declaration was necessary or whether the Court should simply make a factual finding on this question. However, as a declaration was the relief which was specifically requested in the Further Amended Application, and there is no reason why a declaration is not appropriate to the circumstances, it will be the relief granted in respect of this aspect of the application.
Breach of Workplace Relations Act
In light of the facts agreed by the parties and which are rehearsed above at [12], I find that Blue Collar contravened s.341(1) of the Act by lodging the Agreement with the Employment Advocate without having first obtained its employees’ approval of that agreement pursuant to s.340. Section 341(1) is a civil remedy provision. Sections 407 of the WRA and 4AA of the Crimes Act 1914 (Cth) provide that the maximum pecuniary penalty for a contravention of s.341(1) is $33,000.
The evidence
TWUA
The TWUA relied on the statement of agreed facts and on documents which demonstrated that the Agreement had been lodged with the Office of the Employment Advocate on 4 June 2007 and was expressed in the lodgment documents to be a “Union Greenfields Agreement”. The TWUA also relied on the Agreement itself which, amongst other things, disclosed that it is not limited in its terms to Blue Collar’s Melbourne-based employees but applies to employees located in other states – for instance by specific reference to their public holiday entitlements in Queensland and New South Wales.
Blue Collar
Blue Collar relied on the affidavit of its managing director, Cynthia Chakoush, affirmed 15 July 2009, who said:
a)the principal activity of Blue Collar is the provision of labour to businesses in the airline industry and the logistics industry;
b)in August 2003 Blue Collar expanded to Melbourne from its original base in Sydney. In the early years of its Melbourne business it provided labour lent on hire to Qantas Airways;
c)in 2007 Blue Collar was successful in tendering to Virgin Blue for the supply of services in connection with baggage handling but beyond the provision of labour lent on hire. These services included rostering, supervision and management;
d)related to the successful tender to Virgin Blue, Blue Collar decided to negotiate an employee collective agreement with the TWUA and for that purpose retained as a consultant an industrial advocate who had been a “TWU official for the airports”;
e)the consultant was retained to carry out all activities required to negotiate and implement a union collective agreement and Blue Collar relied on his guidance as to the steps to be taken to establish such an agreement for Blue Collar’s new business in Melbourne;
f)in February 2007 Blue Collar was advised by the consultant that an agreement had been reached with the TWUA on the terms of the proposed employment agreement and that there would be a number of formalities he would undertake including lodgment of the agreement with the Workplace Authority [sic];
g)Blue Collar then proceeded to conduct recruitment, induction and training of prospective employees who were working for the company which was, at the time, supplying relevant services to Virgin Blue;
h)Blue Collar commenced providing services to Virgin Blue on 2 April 2007. The agreement was signed on 3 April 2007. Thirty-four employees were retained by Blue Collar in April 2007 to provide those services to Virgin Blue;
i)the consultant advised Blue Collar that he would arrange for the lodgment of the Agreement as a greenfields union collective agreement;
j)after the Agreement was lodged with the Office of the Employment Advocate on 5 June 2007, the consultant advised Blue Collar that he had delayed the Agreement’s lodgment to lengthen the period of its operation. Blue Collar was unaware of the need to lodge the Agreement within a specified time and understood that it took effect once it had been signed by the employer and the union;
k)as a result of the late lodgment of the Agreement, it was subject to the “fairness test” which came into operation for lodgments after 7 May 2007;
l)the Agreement passed the fairness test.
Considerations as to penalty
Introduction
As Tracey J said in Kelly v Fitzpatrick (2007) 166 IR 14 at 18-19 [14], in Mason v Harrington Corporation Pty Limited [2007] FMCA 7 at [24] Mowbray FM identified “a non-exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty”. Tracey J adopted those considerations and described them as follows:
· The nature and extent of the conduct which led to the breaches.
· The circumstances in which that conduct took place.
· The nature and extent of any loss or damage sustained as a result of the breaches.
· Whether there had been similar previous conduct by the respondent.
· Whether the breaches were properly distinct or arose out of the one course of conduct.
· The size of the business enterprise involved.
· Whether or not the breaches were deliberate.
· Whether senior management was involved in the breaches.
· Whether the party committing the breach had exhibited contrition.
· Whether the party committing the breach had taken corrective action.
· Whether the party committing the breach had cooperated with the enforcement authorities.
· The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and
· The need for specific and general deterrence.
However, as Gyles J said in A&L Silvestri Pty Limited v Construction, Forestry, Mining & Energy Union [2008] FCA 466 at [6], there are no mandatory statutory criteria.
Considerations relevant to this case are:
a)the nature and extent of the conduct which led to the breach;
b)the circumstances in which that conduct took place;
c)the nature and extent of any loss or damage sustained as a result of the breach;
d)whether there have been similar previous conduct by the respondent;
e)the size of the business enterprise involved;
f)whether the respondent had a culture of compliance;
g)whether the respondent exhibited contrition;
h)whether the respondent has taken corrective action; and
i)the need for specific and general deterrence.
The nature and extent of the conduct which led to the breach
The conduct in this case involved the lodgment of what the parties now agree was a union collective agreement, notwithstanding that none of the employees covered by that agreement had approved it. By virtue of s.347, the significance of the lodgment of the Agreement with the Office of the Employment Advocate was that it came into operation on the day of lodgment notwithstanding its lack of employee approval.
Ms Chakoush’s affidavit suggests that once the task of negotiating and implementing the Agreement had been contracted out to Blue Collar’s consultant, she essentially abdicated responsibility for ensuring that the requirements of the WRA were met as far as they applied to the Agreement. Ms Chakoush was overseas at the time of the hearing, notwithstanding that the hearing date had been fixed more than eight months earlier. It was therefore impossible to obtain from her any clarification or explanation of the description of events contained in her affidavit. For instance, it is unclear how many persons’ employment is governed by the Agreement although, accepting that the Agreement covers more than those employees providing services to Virgin Blue, that number would exceed five hundred. That is to say, the lodgment of the Agreement had the effect of fixing the terms and conditions of hundreds of Blue Collar’s employees without their approval and, presumably, without their foreknowledge. The agreement has a three year term.
The circumstances in which that conduct took place
Blue Collar’s contract with Virgin Blue was, at the least, the stimulus for Blue Collar to put the Agreement in place. There is conflicting evidence concerning the originally intended purpose and reach of the Agreement. In her affidavit affirmed 15 July 2009 Ms Chakoush says that
As Blue Collar intended to pursue a new business in Melbourne, I determined that it would be beneficial for employees of Blue Collar to have a Workplace Agreement which applied to the new business (para.9).
and yet the Agreement, in its terms, is not limited to Melbourne airport. Moreover, Blue Collar wrote to the TWUA on 3 September 2007 saying, amongst other things:
Pursuant to section 351 of the Workplace Relations Act, 1996 all employees of Blue Collar and Blue Collar are bound by the terms of the Workplace Agreement which has been lodged.
The untested evidence of Ms Chakoush is that the Agreement was to apply to the new Virgin Blue business and this assertion is supported by the Agreement being described as a greenfields agreement when it was lodged with the Office of the Employment Advocate. Why the Agreement was not limited to services provided under the Virgin Blue contract and, indeed, makes no attempt to be limited to any particular airport or client relationship, remains unexplained.
In its written submissions the TWUA submitted that Ms Chakoush’s affidavit discloses that at all times prior to lodgment Blue Collar had intended the Agreement to be a union collective agreement and that it was only after the Agreement was made that a decision was taken to lodge it as a greenfields agreement. The TWUA also pointed to para.19 of the statement of agreed which records facts that Blue Collar had, at all relevant times, represented to the TWUA that the Agreement would be a union greenfields agreement. The TWUA submitted that Blue Collar’s characterisation of the Agreement changed according to whoever it happened to be dealing with.
I am not convinced that a particularly sinister view should be taken of the inconsistent characterisations of the Agreement propounded by Blue Collar. In my view, they are manifestations of the imperfect understanding of and detached approach to the agreement which Blue Collar was seeking to reach and implement. However, when considering Blue Collar’s culpability and such penalty as may be imposed, I do not overlook the fact that Blue Collar’s very business was employment and the allocation of individuals to the fulfilment of particular tasks, or the provision of particular services, for Blue Collar’s clients. Its core business was not production of goods or, with the exception of the Virgin Blue contract, the provision of services. It supplied employees. Consequently, the requirements of workplace relations legislation should have been of especial significance to it.
The nature and extent of any loss or damage sustained as a result of the breach
The TWUA concedes that no actual loss or damage was suffered by any of the employees covered by the Agreement. The TWUA conceded that it could only point to loss of a hypothetical nature, such as the right to refuse approval of the Agreement.
Whether there had been similar previous conduct by the respondent
It was not alleged that Blue Collar had previously been found to have committed any contravention of the WRA.
The size of the business enterprise involved
In her affidavit Ms Chakoush says that, prior to taking on the Virgin Blue Contract, Blue Collar had seventeen full-time staff engaged in management and an average of 500 employees who were placed on hire with Blue Collar’s clients. Those staff numbers increased when the Virgin Blue Contract came into operation. Presumably, Blue Collar’s operation has not reduced in size since that time, although no evidence was adduced on this specific issue. On that presumption, it must be accepted that Blue Collar operated a significant business. This suggests that, had it had the necessary inclination, it could have afforded and obtained comprehensive advice on how best to ensure its compliance with the requirements of the WRA.
Whether the respondent had a culture of compliance
No evidence was adduced to explain whether the senior management of Blue Collar, which in the form of Ms Chakoush was involved in the establishment and implementation of the Agreement, understood the requirements of the legislative environment in which Blue Collar operated, made any attempts to understand the relevant workplace relations legislation or supervised their consultant to ensure that a service of appropriate quality was being provided. It is not apparent, other than outsourcing responsibility for negotiating and implementing the Agreement, that Blue Collar was much concerned with the requirements of the WRA.
Whether the respondent exhibited contrition
Blue Collar submitted that its concession that it had contravened the WRA was evidence of contrition. I reject that submission. There are many reasons why a party might agree to certain factual propositions and admit allegations being made against it. The most obvious of these possibilities is that the factual propositions and allegations are true. A concession of this sort can be grudging just as easily as it can be contrite.
In this case, no evidence of contrition has been placed before the Court. Ms Chakoush’s affidavit is concerned with explaining Blue Collar’s actions and with seeking to shift some or all of Blue Collar’s responsibility for the contravention onto the shoulders of its workplace relations consultant. At no point does she express regret, contrition or any insight into the contravention’s potential significance. Indeed, Ms Chakoush was not even available for cross-examination on her affidavit or to suggest that Blue Collar would, in the future, properly observe relevant workplace relations legislation. No other officer or employee of Blue Collar gave evidence in the proceedings.
It is not apparent that Blue Collar even now understands its obligations and why it should not have done what it did.
Whether the respondent has taken corrective action
Blue Collar adduced no evidence to suggest that it had improved its processes or, should similar circumstances present themselves in the future, that it would conduct itself differently.
The need for specific and general deterrence
In the absence of contrition, particular consideration needs to be given to special deterrence. The inadequately explained absence overseas of Ms Chakoush and thus her unavailability for cross-examination on her affidavit, coupled with the absence of any expressed insight into the contravention and the need to avoid its recurrence, indicates that the penalty to be imposed should include a significant component for special deterrence to discourage Blue Collar from a repetition of conduct of this sort.
This is also a matter where general deterrence must be considered. The position of workers is protected by the law and that protection should be enforced by the courts. Such protection involves sending a message to other participants in the relevant industry that such conduct will not escape punishment. A penalty should be imposed to serve as a warning to others not to engage in similar conduct: CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 231 at [9]. A price should be put on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 per French J at 52,152.
Further matters
The legislative scheme applicable to the events the subject of these proceedings was one which placed a high degree of responsibility on employers to make sure that any agreement lodged with the Employment Advocate had the approval of the relevant employees. The effect of lodging an agreement has already been described. The need to have employees’ approval of such an agreement prior to its lodgment is apparent. In this case the Agreement affects more than those of Blue Collar’s employees who are working with Virgin Blue. Blue Collar’s failure to recognise and respect its employees’ rights to consider approval of the Agreement is a serious breach of its obligations to them, as provided by the WRA.
By admitting the contravention, Blue Collar saved the Court and the TWUA time and expense and freed the Court’s resources to be applied to other matters. In the circumstances of this case, I consider that a reduction of 20% in the penalty the Court would otherwise impose gives appropriate recognition to the admission made by Blue Collar.
It should also be acknowledged that Blue Collar’s contravening conduct was different from that of the respondent in Transport Workers Union of Australia v DHL Exel Supply Chain (Australia) Pty Ltd (No.2) [2008] FMCA 920 to portions of which judgment both parties took the Court. There, the respondent employer lodged an agreement which had not been approved in accordance with the WRA and had been agreed by the National Union of Workers in a process which appears to have involved it supplanting the TWUA at a DHL worksite. In this regard, Smith FM observed that there was evidence sufficient to raise a serious concern whether a better agreement could have been arrived at with DHL Exel if the employees had been allowed the assistance of their chosen union, the TWUA, and if they had been given a reasonable opportunity to negotiate and approve the terms of their future employment in accordance with a reasonable procedure (at [23]). Here, the Agreement was negotiated with a union whose entitlement to represent the workers in question has not been challenged and it has not been suggested that Blue Collar’s employees were denied a real opportunity to obtain terms and conditions better than those provided by the Agreement. Moreover, the Agreement passed the fairness test.
In light of these considerations, Blue Collar’s contravention could be characterised as one more of form than of substance. However, in circumstances where Blue Collar has shown no understanding of the need to avoid a repetition of such conduct in the future, the apparently merely formal nature of the breach assumes a more substantial aspect.
Conclusion
Having taken into account all of the above matters, I conclude that the appropriate penalty to impose on Blue Collar for breach of s.341(1) is $15,000. This figure should be reduced by 20% to take account of the admissions which Blue Collar made prior to the hearing. Consequently, the penalty will be $12,000.
Pursuant to s.841 of the WRA, the TWUA applied for any pecuniary penalty or penalties to be paid to it. Blue Collar did not oppose such a course were a pecuniary penalty to be imposed. Blue Collar will be ordered to pay the penalty to the TWUA.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 27 August 2009
CORRECTIONS
Paragraph 7 line 9 – delete “or” insert “and”.
Paragraph 14 – delete “2001” insert “2009”.
ANNEXURE A
STATEMENT OF AGREED FACTS
The Transport Workers Union of Australia (“TWUA”) is an organisation of employees registered pursuant to schedule 1 of the Workplace Relations Act 1996 (Cwth) (“the Act”) and is capable of suing in its own name.
The TWUA is entitled to represent the industrial interests of, and enrol as members, persons who perform work in the airline industry including but not limited to ground handling and baggage handling services, by virtue of Rule 4 and Annexure B of the Transport Workers Union of Australia Rules (“TWUA Rules”).
Rule 4 of the TWUA Rules states
4. CONDITIONS OF ELIGIBILITY FOR MEMBERSHIP
(1) The Union consists of those persons described in Annexure B
Annexure B of the TWUA Rules states;
Annexure B – conditions of eligibility for membership
A (1). The Union shall consist of an unlimited number of persons employed or seeking to be employed in or in connexion (sic) with the industry or industries, and/or occupation, and/or calling, and/or vocations, and/or industrial pursuits of:
(a)The transport of persons and/or passengers, and/or goods, wares, merchandise, or any material whatsoever, by or on vehicles or animals or by aircraft…..an[d]
Blue Collar Recruitment Pty Limited (“Blue Collar”) is a trading corporation incorporated in the state of New South Wales and is capable of being sued.
Blue Collar is and has at all relevant times been an employer within the meaning of s 6(1) of the Act.
At all material times prior to April 2007, Blue Collar employed staff which were lent on hire to operators in the Australian airline industry and those operators utilised Blue Collar’s staff to perform ground handling and baggage handling services at airports in Australia.
Since April 2007 Blue Collar has continued to employ staff which are lent on hire to operators in the Australian airline industry and those operators utilise Blue Collar’s staff to perform ground handling and baggage handling services at airports in Australia.
The TWUA and Blue Collar are party to a workplace agreement in effect under the Act described as the “Blue Collar Recruitment Agreement 2007” (“the Agreement”).
10.On or about November or December 2006, the TWUA and Blue Collar commenced negotiations for the Agreement to cover persons performing baggage handling and ground handling services as employees of Blue Collar at airports in Australia.
11.In or about late March 2007, the TWUA and Blue Collar concluded negotiations for the Agreement.
12.Blue Collar signed the Agreement on 3 April 2007. Later that day or shortly thereafter, the Agreement was signed by the TWUA.
13.Clause 4 of the agreement defines the parties and scope of the agreement including at 4(c) “ground crew, who will be performing the duties described in the agreement”.
14.The “duties” are described at clause 14 of the Agreement as:
(a)Handling aircraft.
(b)Handling passengers and their belongings.
(c)Selling and issuing tickets.
(d)Making and changing reservations.
(e)Cleaning of aircraft.
(f)Flight operations and ground crew administration.
(g)Load control both manual and computerized.
(h)Other activities related to general cleaning.
(Herein referred to as “baggage handling and ground handling services”)
15.On or about 21 March 2007, Blue Collar held a meeting with prospective employees who would provide baggage handling and ground handling services for Blue Collar to Virgin Blue Airlines at the Virgin Blue baggage room at Melbourne Airport pursuant to a contract between Blue Collar and Virgin Blue (the “Virgin Blue Contract”).
16.The Virgin Blue Contract was a new business for Blue Collar. Blue Collar’s employees providing baggage handling and ground handling services pursuant to the Virgin Blue Contract were not lent on hire to Virgin Blue Airlines.
17.The duties to be performed by the employees referred to in paragraph 15 about were duties described at clauses 14(a) to (c) and 14(e) to (h) of the Agreement.
18.On or about 1 April 2007, Blue Collar commenced providing baggage handling and ground handling services pursuant to the Virgin Blue Contract and for that purpose commenced to employ persons to perform baggage handling and ground handling duties at the Virgin Blue baggage room at Melbourne Airport.
19.Blue Collar did not advise the TWUA prior to the TWUA signing the Agreement on or about 3 April 2007, that it had employed those persons referred to in paragraph 18 about nor that those employees had commenced work. Blue Collar at all relevant times represented to the TWUA that the Agreement would be a Union Greenfields Agreement.
20.On 4 June 2007, the Agreement was lodged with the Workplace Authority by Blue Collar. At the time of lodging the agreement, Blue Collar made and submitted a declaration to the employment advocate dated 1 June 2007 to the effect that the agreement was a Union Greenfields Agreement.
21.The Agreement was in fact a Union Collective Agreement and not a Union Greenfields Agreement by reason of the matters stated in paragraphs 13 to 18 above.
22.Blue Collar did not take the necessary steps to have the Agreement approved by its employees who would be covered by the Agreement in accordance with sections 340 and 341 of the Act prior to lodgement of the Agreement.
23.Mr Sebastian Falcone is and has been at all relevant times, including at the time the Agreement was entered into,
(a)a member of the TWUA, and
(b)an employee of Blue Collar covered by the Agreement.
24.On or about 14 April 2008, Mr. Sebastian Falcone requested that the TWUA make an application to the Court for an order that Blue Collar pay a pecuniary penalty for a breach of section 341 of the Act.
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