FEDERAL CIRCUIT COURT OF AUSTRALIA
| UNITED VOICE v SECOM AUSTRALIA PTY LTD & ANOR | [2015] FCCA 2358 |
| Catchwords: INDUSTRIAL LAW – Summary dismissal application – claims of underpayment of wages and failure to produce documents by security company – very poorly conducted case by union with little attention to detail which led to significant waste of court resources – further questions of standing of union raised – question of tactical considerations by union as opposed to whether litigation in the best interests of members – further time given to union to provide proper information regarding calculation of underpayments – other parts of amended statement of claim struck out – limited issues and no-complex questions of fact – partial award of costs. |
| Legislation: Fair Work Act 2009, ss.481, 482(1), 483(1), 483(4), 483AA , 503(1), 512, 518, 539(2), 540(2), 550, 570(2)(a) Fair Work (Transitional and Consequential Provisions) Act 2009, item 2(3) of Schedule 3; item 40 of Schedule 16 |
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Details
- Case
- [2015] FCCA 2358
- Decision Date
CaseChat Overview and Summary
This matter came before Judge Neville of the Federal Circuit Court of Australia, involving United Voice (the Applicant) and Secom Australia Pty Ltd (the Respondent). The dispute concerned allegations of underpayment of employees and Secom's alleged failure to provide requested documentation, with the Applicant also seeking to add further contravention claims. Secom contested the standing of the Applicant and asserted that any underpayments had been rectified.
The court was required to determine whether the Applicant had a "fanciful" prospect of success in its claims, particularly in light of disputed factual matters and Secom's contention that the Applicant had failed to provide essential information to substantiate its calculations of alleged underpayments. The court also considered Secom's defence that it did not tender directly to the Department of Human Services, and therefore, no tender documents were responsive to the Union's request.
Judge Neville applied the principles from *Spencer* regarding the threshold for summary dismissal, noting that while factual issues were disputed, they were not complex. The court found that the Applicant had failed to provide basic information requested by Secom, which had led to a waste of court resources. The judge also referred to previous criticism of the Applicant's case in another forum, noting that the current claims were generally weak, poorly presented, and lacked attention to detail, warranting similar comments.
The court indicated that it was not inclined to grant further time for the Applicant to provide the necessary information, given the significant delays and the waste of resources. The final orders are not explicitly stated in the provided text, but the reasoning strongly suggests a dismissal of the Applicant's claims or at least a significant curtailment of the proceedings due to the Applicant's conduct.
The court was required to determine whether the Applicant had a "fanciful" prospect of success in its claims, particularly in light of disputed factual matters and Secom's contention that the Applicant had failed to provide essential information to substantiate its calculations of alleged underpayments. The court also considered Secom's defence that it did not tender directly to the Department of Human Services, and therefore, no tender documents were responsive to the Union's request.
Judge Neville applied the principles from *Spencer* regarding the threshold for summary dismissal, noting that while factual issues were disputed, they were not complex. The court found that the Applicant had failed to provide basic information requested by Secom, which had led to a waste of court resources. The judge also referred to previous criticism of the Applicant's case in another forum, noting that the current claims were generally weak, poorly presented, and lacked attention to detail, warranting similar comments.
The court indicated that it was not inclined to grant further time for the Applicant to provide the necessary information, given the significant delays and the waste of resources. The final orders are not explicitly stated in the provided text, but the reasoning strongly suggests a dismissal of the Applicant's claims or at least a significant curtailment of the proceedings due to the Applicant's conduct.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
For abundant caution, at [23] of that decision, I said (emphasis added):[24]There is no dispute that the underpayment has been rectified. Nor is there any dispute that the Respondent has cooperated with the Applicant in relation to the investigation. Further, there is no evidence that the Respondent has previously engaged in similar conduct.[24] Fair Work Ombudsman v Secom Australia (ACT) Pty Limited [2013] FCCA 649 at [23]. I have emphasised part of those reasons in relation to there being no relevant history of conduct of underpayment by Secom because of the contention by Mr Russell-Uren in the ROE Notice that Secom was “a repeat offender.” Clearly this was not the view of the Fair Work Ombudsman in the 2013 proceedings before me. In the light of the comments by this Court in 2013, the assertion by Mr Russell-Uren in his affidavit should not have been made. Thirdly, (and without going through each of the comments in reply), Mr Gillani noted again that there were no tender documents in answer to the Union’s Notice because Secom’s contract is with JLL, and not with DHS. Fourthly, Mr Gillani confirmed that the appeal against the FWC’s latest approval of the latest Secom collective agreement was dismissed by the Full Bench of the FWC on 18th March 2015. Finally, Mr Gillani confirmed (pars.15-19) that in relation to the allegation by Mr Russell-Uren regarding an employee who was said to have worked for 3 months at 125 hours per week, he had checked Secom’s records. Leaving aside statements of incredulity that anyone would, or any employee would, allow such extensive hours, Mr Gillani confirmed that the Secom records show the employee in question (whose identity he had later checked with Mr Russell-Uren) worked on average 41.5 hours per week when he was employed by Secom, and that this employee had never worked 125 hours per week, “or any hours approximating that figure.” In later submissions, this extravagant claim by the Union, and the evidence of Mr Gillani, were never addressed by the Union. In my view, this was another significant omission by the Union. Mr McDonald’s first affidavit (filed 14th January 2015) dealt firstly with the claims in the original Statement of Claim, and noted Secom’s defence to them, namely (a) that the Applicant does not have standing to bring the claim, (b) any underpayments to employees regarding overtime have been paid, and (c) Secom did not tender to DHS, and in consequence there are no tender documents that Secom has in response to the Notice/Request issued by the Union. Secondly, other than referring to procedural matters, Mr McDonald referred to (a) the Union not having sought leave to join the additional sixteen Applicants, and (b) the Amended Statement of Claim adding a further contravention claim, said to arise out of Secom’s failure to produce any duty statement requiring any employee to ensure compliance with the FW Act. In relation to this further contravention, Mr McDonald deposed that s.483AA FW Act permits a permit holder to apply to the FWC for an order allowing that permit holder to access “non-member records.” He said that no such order had been provided by the Union to Secom.
Decision
Reasons for decision
I remind myself of the cautions outlined by the High Court in Spencer in the joint judgment of French CJ and Gummow J at [25] (emphasis added):Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Their Honours, at [26], also referred to caution in summarily dismissing matters where there are “apparently complex questions of fact.” In my view, that is not the situation with the present matter. The factual matters, while highly contested, are not complex. Many of them could have been readily resolved, for example, by the provision of basic information that had been sought by Secom from the Union regarding what was included in its calculation of the alleged underpayments. The Union has never provided that information, even when asked specifically for it. And in cross-examination, Mr Russell-Uren could not provide any further light or clarity on the issue. In the light of these circumstances, it is a very significant indulgence for the Court to allow the Union yet more time to provide this basic information, which should have been provided months ago. Not to have provided it has resulted in the waste of significant resources by the Court, and doubtless by others. I need not repeat, but simply refer to, the stern comments by the High Court regarding the waste of the public resources of courts in AON Risk Services Australia Limited v Australian National University and Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Limited.[39][39] AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [5], [23] and [24] (French CJ) and at [112] – [113] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Limited (2013) 250 CLR 303 at [51], [56] and [57] (French CJ, Kiefel, Bell, Gageler & Keane JJ). In a contest in a different forum involving these parties (and others), the Fair Work Commission was critical of the Union regarding the weakness of its case, and seemed also to question whether the Application was in the interests of the Union’s members, but rather more in the interests of the Union. In quite a number of respects, the claims made by the Union in this Court warrant similar comments. Generally, the claims are weak. They are poorly presented, with significant inattention to relevant and basic detail. The poverty of presentation and lack of attention to proper detail has led to a waste of Court resources, among other things. The Union has also shown a decided lack of enthusiasm to provide material that properly should have been provided both before it was requested, but especially so when it was so asked by Secom.
Ratio Decidendi
Legal Principle Established
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