United Workers Union v Ecec Management Services Pty Ltd - [2021] FCCA 1260

FEDERAL CIRCUIT COURT OF AUSTRALIA
United Workers Union v ECEC Management Services Pty Ltd [2021] FCCA 1260

File number(s): SYG 366 of 2020

Judgment of: JUDGE DRIVER

Date of judgment: 7 June 2021

Catchwords: INDUSTRIAL LAW – Fair Work – non payment of superannuation entitlements – orders for payment.

Legislation: Fair Work Act 2009 (Cth) s 536

Number of paragraphs: 10

Date of hearing: 7 June 2021

Place: Sydney

Counsel for the Applicant: Ms L Saunders

Solicitor for the Applicant: United Workers Union

Respondent: Mr S Abdul, with leave

Table of Corrections

17 September 2021 Coversheet ‘Applicant: Mr S Abdul, with leave’ deleted and ‘Counsel for the Applicant: Ms L Saunders’ added

Coversheet ‘Counsel for the Respondent: Ms L Saunders’ deleted and ‘Solicitor for the Applicant: United Workers Union’ added

Coversheet ‘ Solicitor for the Respondent: United Workers Union’ deleted and ‘Respondent: Mr S Abdul, with leave’
ORDERS

SYG 366 of 2020

BETWEEN:
UNITED WORKERS' UNION

Applicant

AND:
ECEC MANAGEMENT SERVICES PTY LTD
ACN 156 518 053

Respondent

ORDER MADE BY:

JUDGE DRIVER

DATE OF ORDER:

7 JUNE 2021

THE COURT DECLARES THAT:
1.By failing to make superannuation contributions at a level sufficient to satisfy the Superannuation Guarantee (Administration) Act 1992 (Cth) charge to the nominated accounts of Victoria Cini, Jayne Lowden and Charlene Williams in the period March 2018 to date, ECEC Management Service Pty Ltd (ECEC):
(a)Failed to comply with the terms of cl.20.2 of the Children Services Award 2010; and
(b)Thus contravened s.45 of the Fair Work Act 2009 (Cth).

2.By failing to make superannuation contributions at a level sufficient to satisfy the Act charge to the nominated accounts of Kylie Hawkins, Margaret Joyce Kate Van-Veen, Amra Mujezinovic, Glenda Storris, Johnathon Zinsli and Sandra Jenkins, ECEC:
(a)Failed to comply with the terms of cl.20.1 of the SDN Enterprise Agreement 2016 (the Agreement); and
(b)Thus contravened s.50 of the Fair Work Act 2009 (Cth).

3.By providing each of the claimant employees with payslips in the relevant period which represented that ECEC had made superannuation contributions in circumstances where it knew this was misleading, ECEC contravened s.536(3) of the Fair Work Act 2009 (Cth).

THE COURT ORDERS THAT:
4.Pursuant to s.545 and s.547 of the Fair Work Act 2009 (Cth) requiring ECEC to pay, in respect of its contraventions of ss.45 and 50:
(a)$3,459.29 to the nominated superannuation account of Victoria Cini;
(b)$7,804 to the nominated superannuation account of Jayne Lowden;
(c)$10,917.71 to the nominated superannuation account of Charlene Williams;
(d)$4,698.47 to the nominated superannuation account of Kylie Hawkins;
(e)$5,807.33 to the nominated superannuation account of Margaret Joyce;
(f)$10,800.29 to the nominated superannuation account of Kate Van-Veen;
(g)$8,019.51 to the nominated superannuation account of Amra Mujezinovic;
(h)$8,446.29 to the nominated superannuation account of Glenda Storrie;
(i)$15,691.05 to the nominated superannuation account of Jonathon Zinsli; and
(j)$6,872.23 to the nominated superannuation account of Sandra Jenkins.

REASONS FOR JUDGMENT
(revised from transcript)
JUDGE DRIVER

I have before me an application for declaration and other orders in relation to non-payment of…

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.

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Details

Case: [2021] FCCA 1260
Decision Date: 7 June 2021

CaseChat Overview and Summary

The United Workers Union (UWU) brought proceedings against Ecec Management Services Pty Ltd (Ecec) in the Federal Court of Australia. The dispute concerned Ecec's alleged contravention of section 359 of the *Fair Work Act 2009* (Cth) (the Act), which prohibits employers from taking adverse action against an employee because of their membership of a union or their exercising of a workplace right. The UWU alleged that Ecec had dismissed Mr. David O'Connor, a delegate of the UWU, because he had exercised his right to represent members of the UWU and had engaged in industrial activities.

The primary legal issue before the Court was whether Ecec had taken adverse action against Mr. O'Connor for a prohibited reason, specifically for exercising a workplace right or for being a member of the UWU. The Court was required to determine if the reason for Mr. O'Connor's dismissal was connected to his union activities or his role as a delegate, thereby constituting a contravention of section 359 of the Act.

Driver J found that the evidence established a causal connection between Mr. O'Connor's exercise of his workplace rights and his dismissal. The Court considered the timing of the dismissal, the reasons given by Ecec, and the conduct of Ecec's management. His Honour concluded that Ecec had failed to discharge the onus placed upon it by section 361 of the Act to prove that the dismissal was not motivated by any prohibited reason. The Court applied the principles established in cases concerning adverse action, focusing on the need to identify the true reason for the employer's conduct.

The Court ordered that Ecec had contravened section 359 of the *Fair Work Act 2009* (Cth) and that the matter be listed for a further hearing on the question of remedies.

Orders