Wells v Locarno Management Pty Ltd - [2008] FCA 1034

FEDERAL COURT OF AUSTRALIA
Wells v Locarno Management Pty Ltd [2008] FCA 1034
ALAN WELLS v LOCARNO MANAGEMENT PTY LTD and ALEX ZOTOS
VID 1194 OF 2006
JESSUP J
15 JULY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1194 OF 2006

BETWEEN:

ALAN WELLS
Applicant

AND:

LOCARNO MANAGEMENT PTY LTD
First Respondent

ALEX ZOTOS
Second Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

15 JULY 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS BY CONSENT THAT:
1.A penalty of $3,300 be imposed on the first respondent for the contravention by it of s 400(5) of the Workplace Relations Act 1996 (Cth) constituted by the application of duress to an employee, Jasmine Anne Sinclair, in connection with an Australian Workplace Agreement in April and May 2006.
2.The first respondent pay the said penalty to the Consolidated Revenue within 21 days.
3.The proceeding otherwise be dismissed.
4.There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1194 OF 2006

BETWEEN:

ALAN WELLS
Applicant

AND:

LOCARNO MANAGEMENT PTY LTD
First Respondent

ALEX ZOTOS
Second Respondent

JUDGE:

JESSUP J

DATE:

15 JULY 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

This is an application by a workplace inspector (“the applicant”) for a pecuniary penalty to be imposed under s 407 of the Workplace Relations Act 1996 (Cth) (“the WR Act”) in relation to alleged contraventions of s 400(5) of that Act. The first respondent, Locarno Management Pty Ltd, was, at relevant times, the operator of the Hepburn Spa Resort in Hepburn Springs, Victoria. In the Further Amended Statement of Claim filed on 4 July 2007, it is alleged that the first respondent applied duress to certain of its employees in connection with Australian Workplace Agreements (“AWAs”) which it proposed they should execute, in contravention of s 400(5) of the WR Act.
When the proceeding came on for trial on 23 June 2008, counsel for the applicant announced that the matter had been settled, that the parties had agreed to a written statement of facts to be placed before the court, and that the parties were also agreed upon the final orders which should be made in disposition of the proceeding. It is proposed that the first respondent be found to have contravened s 400(5) in one respect only, and in relation to one employee only, and that the proceeding otherwise be dismissed, with no order as to costs. The facts referred to below are taken from the parties’ agreed statement.
The resort at Hepburn Springs stands upon land which is subject to the Crown Land (Reserves) Act 1978 (Vic). The Hepburn Shire Council (“the Council”) is the committee of management for the land for the purposes of s 29A of that Act. The land was the subject of a lease between the council and a company associated with the first respondent which originally was to expire on…

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: [2008] FCA 1034
Decision Date: 15 July 2008

CaseChat Overview and Summary

Alan Wells, a workplace inspector, filed an application against Locarno Management Pty Ltd and Alex Zotos seeking a pecuniary penalty for alleged contraventions of section 400(5) of the Workplace Relations Act 1996 (Cth). The applicant alleged that the first respondent applied duress to certain employees in connection with Australian Workplace Agreements, in contravention of the Act. The proceeding came on for trial on 23 June 2008, and counsel for the applicant announced that the matter had been settled, and the parties were agreed upon the final orders to be made in disposition of the proceeding.

The court was required to decide whether the first respondent had contravened section 400(5) of the WR Act by applying duress to an employee in connection with an Australian Workplace Agreement and, if so, the appropriate penalty to be imposed. The court was also required to determine whether the second respondent should be removed as a party to the proceeding.

The court found that the first respondent had contravened section 400(5) of the WR Act by applying duress to an employee in connection with an Australian Workplace Agreement. The court accepted the parties' agreed statement of facts, which outlined the circumstances in which the first respondent had applied illegitimate pressure upon the employee to sign the AWA. The court found that the agreed penalty of $3,300 was within the permissible range and imposed the penalty on the first respondent. The court also dismissed the proceeding in relation to the second respondent, as the parties had reached a consent position that no orders should be made against him.

The final orders made by the court were that a penalty of $3,300 be imposed on the first respondent for the contravention of section 400(5) of the WR Act, that the first respondent pay the penalty to the Consolidated Revenue within 21 days, that the proceeding otherwise be dismissed, and that there be no order as to costs.

Orders