Furlong v Maxim Electrical Services

REASONS FOR JUDGMENT 1 In two previous judgments in this proceeding the Court has: (a) · declared that the second respondent, Walter J Pratt Pty Ltd, paid wages to its employees in breach of s 187AA of the Workplace Relations Act 1996 (Cth); · declared that Pratt had breached a certified agreement binding it and the third respondent, the Union, by failing to abide by a dispute settlement procedure (see Furlong v Maxim Electrical Services (Aust) Pty Ltd [2005] FCA 1518); and (b) · imposed a penalty on the seventh respondent, Maxim Electrical Services (Vic) Pty Ltd for its breach of s 187AA in the sum of $1,750; · declared that Maxim (Vic) had breached the provisions of a dispute settlement procedure contained in a certified agreement binding it and the Union (see Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 2) [2006] FCA 740). 2 These reasons for judgment should be read together with those two previous judgments. 3 This judgment deals with that part of the proceeding in which the applicant seeks: · a declaration that the Union has breached s 187AB; · the imposition of a penalty on the Union under s 187AD for contravention of s 187AB; · a declaration that the Union has breached the Maxim Electrical Services Pty Ltd Enterprise Agreement 2000-2003; and · the imposition of a penalty on the Union for breach of the certified agreement. 4 As is apparent from the previous judgments, employees of Pratt and Maxim (Vic), who were members of the Union, were employed to perform work on 5 and 6 August 2003 at the Concept Blue site. 5 At 8.30 am on 5 August 2003, employees of Pratt and Maxim (Vic) stopped work to attend a meeting conducted by representatives of the Union. After the meeting, the site safety committee, comprising representatives of the head contractor, Multiplex Limited, and representatives of the Union, conducted a site safety audit. 6 The applicant and the Union agree that the Union organised or engaged in the industrial action which occurred on 6 August 2003, with the intent to coerce Pratt and Maxim (Vic) to pay the employees concerned for the period for which they engaged in industrial action and did not work on 5 August 2003. 7 The Union has agreed that it breached s 187AB(1)(b) of the Act by organising or engaging in industrial action against an employer with intent to coerce it to make a payment to employees in relation to a period during which those employees engaged in industrial action and did not work. 8 The applicant and the Union also agree that the Union failed to comply with the provisions of the dispute settlement clause contained in the Maxim (Vic) certified agreement. 9 The issue for the Court to determine is what orders should be made as a consequence of the agreement of the applicant and the Union, in the context of the abovementioned facts and the previous judgments in the proceeding. 10 The meeting and safety audit flowed from a death in the construction industry, which occurred at a site in Shepparton on 1 August 2003. 11 The safety audit took the form of a detailed inspection of the Concept Blue site, the identification of occupational health and safety risks and the recording of matters which required action to prevent those risks recurring. 12 The safety audit commenced shortly after the meeting and lasted until about 1.00 pm. During the audit the relevant employees did not perform work. 13 At about 1.10 pm representatives of Multiplex told representatives of the Union that the employees would not be paid for the time for which they did not work, while the safety audit was conducted. The employees did not work for the balance of the day, that is, until the usual 3.30 pm finishing time. 14 Nine Pratt employees did not perform any work on the next day, 6 August 2003. Eleven Maxim (Vic) employees did not perform work on 6 August 2003 between 7.00 am and 10.00 am. That refusal to work is agreed by the relevant parties to constitute industrial action. 15 In the previous judgment concerning Pratt, the Court made declarations that Pratt had breached s 187AA and a certified agreement. In refusing to order the payment of a pecuniary penalty, I followed the approach of Finkelstein J in Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500. In that judgment his Honour noted: · no harm had been done to anyone; · the contravention was inadvertent and unlikely to recur; · the amount of wages involved was insignificant, approximately $656.72; · it would be wrong to punish the respondents in those circumstances; · nothing would have been achieved by the imposition of a pecuniary penalty; and · there is no need for a specific deterrent. 16 I held that the same considerations applied to Pratt. 17 In the previous judgment concerning Maxim (Vic), I noted the steps taken by it to ensure no contravention of s 187AA would occur as a result of its acts in the future. I also observed that the facts and circumstances were not materially distinguishable from those referred to in the Pratt matter. 18 I said that, as with Pratt's breaches of s 187AA and a certified agreement, the like breaches by Maxim (Vic) were inadvertent and unlikely to recur. At [11] I said: 'No utility would ordinarily be served by imposing a penalty. However, the parties, operating at arms length and competently advised, consider that a penalty of $1,750 should be imposed. I see no good reason to depart from that agreement as the sum is not a significant one for the seventh respondent. I will impose the penalty for breach of the Act but not impose any additional penalty for breach of the certified agreement, in respect of which a declaration will be recorded.' 19 No harm has been done to anyone as a result of the contraventions of s 187AB and the certified agreement binding Maxim (Vic) by the Union. The contraventions are unlikely to recur, given the current policy of the Union that productive work will continue on site, in the future, in the event of the conduct of a safety audit. In the circumstances, subject to what follows below, little would be achieved by the imposition of a penalty. However, I must bear in mind that the contravention was not inadvertent, but the consequence of a policy existing in 2003. I also must bear in mind that the Union has not breached s 187AB or any certified agreement previously. The applicant alleged the Union has previously engaged in one breach of s 170NC of the Act and one breach of s 45D of the Trade Practices Act 1974 (Cth). Each breach was not related to the construction industry and must be considered in the context of a Union which has existed for almost a century, through all three of its amalgamated constituent parts. 20 It must also be borne in mind that the Union has expended in excess of $80,000 through its involvement in this proceeding and that, as a consequence of such involvement, has devised a new policy to prevent recurrence of the contraventions. I also take into account that the admission of the relevant breaches has saved the expense of a trial but agree with counsel for the applicant that the agreed position has come relatively late in the proceeding. 21 In all the circumstances, I consider, having regard to the deliberate nature of the breach, despite the considerable ameliorating factors set out above, that I should impose a fine, but that the amount of the fine should reflect the factors referred to above. I will impose a fine of $1750. That fine is the same amount as ordered in the Maxim (Vic) case. That was in circumstances where, but for the agreement of the relevant parties, I would not have imposed a fine at all. I consider it would not be appropriate to fine the Union a higher amount than the employer which made a payment in breach of s 187AA, in circumstances where the employer and the Union were both complying with a policy which they adhered to on building sites, albeit in breach of ss 187AA and 187AB of the Act, being a policy which is a thing of the past. As with Maxim (Vic), I do not propose to impose an additional penalty for breach of the Maxim (Vic) certified agreement by the Union. That breach arose out of the same course of conduct that led to the breach of s 187AB. I propose to make orders which are materially the same as those made in the Maxim (Vic) matter as set out in [1] of that judgment. An additional order will be made that the proceeding be otherwise dismissed without adjudication of its merits concerning the fourth, fifth and sixth respondents. The first respondent has previously been removed as a party to the proceeding. The formal orders are: (1) A penalty of $1750 be imposed on the third respondent for breach of s 187AB of the Workplace Relations Act 1996 (Cth). (2) The penalty so imposed be paid to the Consolidated Revenue Fund within 21 days. (3) It is declared that the third respondent committed a breach or non-observance of the Maxim Electrical Services Pty Ltd Enterprise Agreement 2000-2003 by failing to follow the steps detailed in clause 13 of the agreement. (4) The proceeding is otherwise dismissed, without adjudication of its merits, concerning the fourth, fifth and sixth respondents. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.