IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG 53 of 1997 BETWEEN: TRANSPORT WORKERS' UNION OF AUSTRALIA Applicant AND: ATLANTIS RELOCATIONS (ACT) PTY LTD (ACN 068 974 569) Respondent JUDGE: FINN J DATE OF ORDER: 15 may 1998 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The Notice of Motion of 30 October 1997 is dismissed. 2. The Applicant has leave to amend the Amended Statement of Claim. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG 53 of 1997 BETWEEN: TRANSPORT WORKERS' UNION OF AUSTRALIA Applicant AND: ATLANTIS RELOCATIONS (ACT) PTY LTD (ACN 068 974 569) Respondent JUDGE: FINN J DATE: 15 MAY 1998 PLACE: CANBERRA REASONS FOR JUDGMENT The principles to be applied on a motion to strike out a pleading under O 11 r 16 of the Federal Court Rules are well established. Here I need merely note that the strike out power is one to be exercised sparingly and only where a case is clearly untenable, and that where the challenge made is that the pleading discloses no reasonable cause of action, the statement of claim must contain all the material facts to support any allegations made: see eg H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181; Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109. The amended statement of claim the subject of the present strike out motion was served by the applicant, the Transport Workers' Union of Australia ("the TWU"), on the respondent, Atlantis Relocations (ACT) Pty Ltd ("Atlantis"), in an application made under s 178 of the Workplace Relations Act 1996 ("the Act"). Before setting out the terms of that section it is appropriate to note that Atlantis prosecuted this motion under the clear misapprehension that, this being a case for civil penalties, the court would not order discovery in the proceedings because it could involve self-incrimination or the risk of exposure to a penalty: see now Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96. Section 178 insofar as presently relevant provides: "178 Imposition and recovery of penalties (1) Subject to section 182, where an organisation or person bound by an award, an order of the Commission or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or, except in the case of a breach of a bans clause, by a court of competent jurisdiction. (2) Subject to subsection (3), where: (a) 2 or more breaches of a term of an award, order or agreement are committed by the same organisation or person; and (b) the breaches arose out of a course of conduct by the organisation or person; the breaches shall, for the purposes of this section, be taken to constitute a single breach of the term." (Emphasis added) ... (6) Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount that the employer was required to pay under an award, order or agreement, the court may order the employer to pay to the employee the amount of the underpayment." I have emphasised the provisions of sub-section (2) for this reason. As will appear the Statement of Claim does not particularise breaches of terms of the award individually in relation to designated employees and then aggregate these as claims for a breach of those terms of the award. Rather the pleading deals with the employees en bloc in relation to alleged breaches of particular award provisions. It is this approach that has, in essence, precipitated the present motion. I should add this much before turning to the pleading. As s 178 (2) makes plain when the subsection is invoked, irrespective (a) of how many breaches there are of a particular term in an award and (b) of how many employees are thereby affected, the s 178 action for a penalty is as for a single breach of that term: on which see Quinn v Martin (1977) 31 FLR 35; Lynch v Buckley Sawmills Pty Ltd (1984) 9 1R 469. The Amended Statement of Claim I can in large degree simply exemplify the objection made to the pleading. Paragraphs 4, 5, 7, 10 and 11(i) of the Statement of Claim, for example, are in terms that: "4. At all relevant times the respondent engaged employees to perform furniture removal and office relocation works ("the employees") for the respondent in various parts of the Australian Capital Territory. 5. The terms and conditions of employment of the employees are and were at all material times subject to the award. 6. The applicant, its members and the employees are affected by breaches of the award by the respondent. 7. At all relevant times clause 5(a) of the award provided for wage rates to be paid to employees performing work as follows: Grade Weekly wage rate ($) 1 393.20 2 408.50 3 416.20 4 427.70 5 435.30 6 443.00 7 450.70 8 469.70 9 481.20 ... 10. From 28 April 1997 the respondent paid wages to the employees for any work completed at any time calculated on an hourly basis as follows: Grade 3 Where an employee $12.50 For the first 40 hours in any performs off-sider one week and duties $14.00 thereafter Grade 2 Where an employee $13.50 For the first 40 hours in any performs driving duties one week and and holds a class 3A license or above $15.00 thereafter Grade 1 Where an employee $ 1.20 In addition performs supervising duties. 11. The respondent has breached clauses 5(a), ... of the award. PARTICULARS (i) For the period commencing on or about 28 April 1997 the respondent did not pay employees at the rates set out in paragraph 7, above. The respondent paid the employees at the flat rates set out in paragraph 10, above." Atlantis' objection to the pleading is that the TWU has failed to provide the material facts upon which its claims are based. This, it claims, is most acutely so in relation to the nature of the breaches alleged. Rather than identify individually the employee affected by the breach, the term said to be breached and the particular circumstances of the alleged breach, the pleading, so it is said, simply moves on the basis of a number of assertions of fact which it is said lead to an inference of breach. The TWU in contrast submits that, having regard to the particular legislative provision in question and of the pleading it invites - cf Commission for Racial Equality v Ealing London Borough Council [1978] 1 WLR 112 - it has sufficiently pleaded an arguable case of, for example, a breach of clause 5(a) of the award. While the pleading itself does not identify actual individual employees affected further and better particulars have been provided subsequently that do so. In any event it is said further particularisation of the breaches in relation to individual employees presupposes disclosure to the applicant of information of matters within Atlantis' own knowledge. It is in my view clear that before s 178 (2) can be invoked in aid of a s178(1) claim, two or more actual breaches of a term of an award need to be proved. One ordinarily would expect that such would be pleaded explicitly with the employees concerned identified. This has not occurred here. It is indeed fair to say that the Amended Statement of Claim is a sparse almost unrewarding document to read. It is not, though, so defective as to warrant the extreme step of being struck out. While the pleading borders on statements of conclusion rather than of material facts - a result somewhat contrived in any event by the nature of the statutory cause of action when considered in light of s 178(2) - and while particulars are not per se substitutes for "material facts" in a pleading, the Statement of Claim does, with one proviso, sufficiently identify the breaches of terms relied upon and the manner of their breach for it to be able to be pleaded to by way of defence. Further particularisation should await discovery. The proviso I would note is in relation to para 17 of the Statement of Claim. Without setting it out I merely note that, given the obligation imposed by cl 27(a)(i) of the award and the proviso to it, the pleading does not actually identify sufficiently conduct amounting to a breach of the clause. I will give leave to amend the Statement of Claim. I would have to say that I regard this pleading as near the borderline. I would add that if it proves to be productive of difficulties at the hearing of the matter and so protracts proceedings, such may well be reflected in costs awards. In any event, given the powers able to be availed of by the union under s 285B of the Act to obtain information from Atlantis, the spartan quality of the pleading is a proper cause for criticism by Atlantis. I will, then, dismiss the motion. I will grant leave to further amend the Amended Statement of Claim - and in so doing I do not confine that leave to the amendment of paragraph 17. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn Associate: Dated: 15 May 1998 Counsel for the Applicant: R Mildren Solicitor for the Applicant: Smith Counsel for the Respondent: G Hatcher Solicitor for the Respondent: Phillips Fox Date of Hearing: 4 December 1997 Date of Judgment: 15 May 1998