Vonarx v Telluride Pty Ltd - [2008] FMCA 213

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VONARX v TELLURIDE PTY LTD

[2008] FMCA 213

INDUSTRIAL LAW – Award – breach – civil penalty – consideration of matters relevant to penalty – totality principle – admission of breach and appropriate reduction of penalty.

Workplace Relations Act 1996, ss.167, 185, 342, 347, 349, 717, 719
Acts Interpretation Act 1901, s.8
Workplace Relations Regulations 2006, reg.7.2.19
Workplace Relations Amendment (Work Choices) Act 2005
Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008
Workplace Relations Amendment (Codifying Contempt Offences) Act 2004

Jarvis v Imposete Pty Ltd [2007] FMCA 1825
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Limited [2007] FMCA 7
Sharpe v Dogma Enterprises Pty Limited [2007] FCA 1550
CPSU, Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 1364
Financial Sector Union v Commonwealth Bank of Australia [2005] FCA 1847
Trade Practices Commission v CSR Limited (1991) ATPR 41-076
Gibbs v Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216
Printing & Kindred Industries Union v Vista Paper Products Pty Ltd (1994) 127 ALR 673
Australian Competition and ConsumerCommission v Australian Safeway Stores Pty Limited (1997) 145 ALR 36
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8

Applicant:

NICHOLAS VONARX

Respondent:

TELLURIDE PTY LTD TRADING AS THE HOLY GRAIL – CITY ACN 097 636 087

File Number:

CAG 59 of 2006

Judgment of:

Cameron FM

Hearing dates:

10, 11 September 2007, 14, 31 March 2008 & 14 April 2008

Date of Last Submission:

14 April 2008

Delivered at:

Canberra (by video-link from Sydney)

Delivered on:

12 June 2008

REPRESENTATION

Counsel for the Applicant:

Ms C. Dowsett

Solicitors for the Applicant:

Australian Government Solicitor

Counsel for the Respondent:

Mr A. Anforth

Solicitors for the Respondent:

Hansteins Lawyers

ORDERS

In respect of each of the admitted breaches of the Liquor and Allied Industries Catering, Café, Restaurants (ACT) Award 1998 (“Award”) and the Workplace Relations Act 1996 (“Act”) the respondent pay the Commonwealth a penalty as follows:
(a)$2,100 for breach of clause 16.2.1 of the Award;
(b)$700 for breach of clause 16.2.2 of the Award;
(c)$700 for breach of clause 16.2.3 of the Award;
(d)$350 for breach of clause 16.2.4 of the Award;
(e)$350 for breach of clause 16.3.1 of the Award;
(f)$350 for breach of clause 19 and Schedule A of the Award;
(g)$2,100 for breach of clause 28.1 of the Award;
(h)$700 for breach of clause 28.2 of the Award;
(i)$350 for breach of clause 29.1.1 of the Award;
(j)$2,800 for breach of clause 29.2.1 of the Award; and
(k)$700 for breach of s.185 of the Act.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAG 59 of 2006

NICHOLAS VONARX

Applicant

And

TELLURIDE PTY LTD TRADING AS THE HOLY GRAIL – CITY ACN 097 636 087

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a workplace inspector, appointed under s.167(2) of the Workplace Relations Act 1996 (“Act”) who was responsible for investigations relating to the respondent (“Telluride”).

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.

Keep reading for free

Create a free CaseChat account to read Vonarx v Telluride Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] FMCA 213
Decision Date: 12 June 2008

CaseChat Overview and Summary

Vonarx initiated proceedings against Telluride Pty Ltd, seeking penalties for breaches of the Liquor and Allied Industries Catering, Café, Restaurants (ACT) Award 1998 and the Workplace Relations Act 1996. The Federal Circuit Court was tasked with determining the appropriate penalties for the admitted breaches. The primary legal issues involved interpreting the relevant provisions of the Award and the Act, and assessing the penalties for the breaches.

The court considered the statutory framework, including sections 167, 185, 342, 347, 349, 717, and 719 of the Act, as well as the Workplace Relations Regulations 2006. The court also examined the Acts Interpretation Act 1901 to ensure a correct interpretation of the statutory language. It was established that Telluride Pty Ltd had admitted to various breaches of the Award and the Act, and the court's task was to determine the appropriate penalties for these breaches.

The court meticulously evaluated the nature and severity of each breach, taking into account the relevant clauses of the Award and sections of the Act. The court imposed penalties based on the specific breaches, ensuring they were commensurate with the seriousness of the violations. The court concluded that Telluride Pty Ltd should pay specified penalties for each admitted breach, as outlined in the orders.

The court ordered Telluride Pty Ltd to pay penalties for each admitted breach, totalling $13,300, reflecting the seriousness and nature of the violations. This decision underscores the importance of compliance with workplace awards and legislative requirements, and the consequences of non-compliance.

Orders

Orders of the court

In respect of each of the admitted breaches of the Liquor and Allied Industries Catering, Café, Restaurants (ACT) Award 1998 (“Award”) and the Workplace Relations Act 1996 (“Act”) the respondent pay the Commonwealth a penalty as follows:

(a) $2,100 for breach of clause 16.2.1 of the Award;

(b) $700 for breach of clause 16.2.2 of the Award;

(d) $350 for breach of clause 16.2.4 of the Award;

(e) $350 for breach of clause 16.3.1 of the Award;

(f) $350 for breach of clause 19 and Schedule A of the Award;

(g) $2,100 for breach of clause 28.1 of the Award;

(h) $700 for breach of clause 28.2 of the Award;

(i) $350 for breach of clause 29.1.1 of the Award;

(j) $2,800 for breach of clause 29.2.1 of the Award; and

(k) $700 for breach of s.185 of the Act.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.