Pine v Austress Freyssinet

REASONS FOR JUDGMENT 1 There is before the Court an application for the imposition of penalties on the respondent under s 187AD of the Workplace Relations Act 1996 (Cth) ("the Act"). Those penalties are sought for contravention of s 187AA of the Act, by making payments to four persons in relation to periods during which each of those persons engaged in industrial action. The applicant also seeks a declaration that by making each of the payments, the respondent contravened s 187AA. 2 A statement of agreed facts has been filed which discloses that each of the four persons to whom the payments were made was an employee of the respondent employed pursuant to the Austress Freyssinet (Vic) Pty Ltd and CFMEU Building and Construction Industry Collective Bargaining Agreement 2002‑2005 ("the certified agreement"). 3 The four employees were working at the time on post-tensioning of concrete on the Concept Blue apartment building at 336 Russell Street, Melbourne ("the Concept Blue site"). On Friday, 1 August 2003, a Mr Andrew Schouten, a labourer, was killed when a crane near which he was working struck overhead wires on a farm at Shepparton. Apparently, there was no work scheduled to be performed by the respondent at the Concept Blue site on the next three days. The 2nd August was a Sunday and the next day, Monday, 3 August, was a rostered day off under the certified agreement. 4 Work at the Concept Blue site resumed as normal on the next day, Tuesday, 5 August, but stopped at 8.30 am when the CFMEU conducted a site safety audit pursuant to its "on-site fatalities policy and procedure". Each of the respondent's four employees stopped work at that time and did not resume work at all during that day, Tuesday, 5 August. On the following day, Wednesday, 6 August, workers on the site, including, as I understand, the respondent's four employees, went to the site sheds as they arrived at about 7.00 am. At about 7.30 am a mass meeting of workers at the Concept Blue site was held over a dispute related to payment for the time not worked on the previous day. 5 At about 8.30 am on the same morning a meeting was held between representatives of the head contractor, Multiplex Ltd, and representatives of the CFMEU. Later, at about 10.00 am, another mass meeting was held and the workers agreed to return to work on the basis of an agreement which had been reached between Multiplex and the CFMEU over the issue of payment for the previous day. Each of the respondent's employees participated in the stop-work meetings on the morning of Wednesday, 6 August and so did not resume work until about 10.00 am on that day. 6 On or about 13 August, payments were made on behalf of the respondent to each of the four employees in respect of the period of about six and a half hours during which they had not worked on Tuesday 5 August and the period of about three hours during which they had not worked while the stop-work meetings were being conducted on the morning of Wednesday 6 August. An explanation for making those payments appears in these terms at pars 12 and 13 of the agreed statement of facts: '12. At the time of making the total payment referred to in Paragraph 11, the Respondent's senior supervisor of operations, Peter Cole, who normally confirms and authorises payment, was on leave. Cole's replacement John Wiseman took the timesheets at face value. The leading hand on the Concept Blue site who was responsible for submitting the employees' time sheets, did not make any diary entries in relation to any industrial action on the Concept Blue site on those days. 13. The leading hand who was the Respondent's senior representative at the Concept Blue site submitted a timesheet to the Respondent's off-site management which recorded that each of the Respondent's employees had worked 8 hours on each of 5 and 6 August 2003. In so doing, he did not disclose that those employees had engaged in industrial action on those days.' 7 It is accepted that the respondent customarily withholds payment of wages in respect of periods during which its employees engage in industrial action. It claims to be "well aware" that payment of strike pay is unlawful and a breach of Pt VIII of the Act. Instances are given in the agreed statement of facts of two occasions on which the respondent has adhered to the practice to which I adverted a moment ago of withholding payment in respect of periods during which its employees have engaged in industrial action. In the concluding paragraph of the agreed statement of facts it is recited: 'The Respondent paid its employees for the times they did not work on 5 and 6 August 2003 on the Concept Blue site, because its off-site management was not aware of the industrial action on the site on those days. As stated at Paragraph 12, the Respondent's standard procedure is that their Operations Supervisor approves the time sheets, prior to payment.' 8 No prior convictions have been alleged against the respondent. The stoppage on the Concept Blue site on 5 and 6 August 2003, according to paragraph 14 of the agreed statement of facts, led to its incurring a cost of between $3,000.00 and $6,000.00. It is not indicated in the statement of facts whether that cost includes the amount of $900.70 paid to the employees in question. Section 187AA(1) provides: 'An employer must not make a payment to an employee in relation to a period during which the employee engaged, or engages, in industrial action if: