Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd [1998] FCA 1079

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW – Application for penalties – Alleged breaches of awards – Unilateral decision by coal mine operator to work rotating shifts – Whether this constituted breach of award provision requiring consultation in respect of variation of "ordinary working hours of any shift" – Alleged breach of deemed award, being decision of Local Coal Authority – Decision to vary bonus agreement between employer and unions – Decision limited to substitution of different dollar figure in formula for computation of bonus – Whether subsequent unilateral variation of figure by employer constituted a breach of the deemed award. Workplace Relations Act 1996, s 178 Coal Industry Act 1946, ss 36 and 39 The Coal Mining Industry (Production and Engineering) Interim Consent Award 1990, cll 6 and 13 NG 337 of 1998 CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v COAL & ALLIED OPERATIONS PTY LIMITED JUDGE: WILCOX J PLACE: SYDNEY DATE: 4 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 337 of 1998

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

AND: COAL & ALLIED OPERATIONS PTY LIMITED

Respondent

JUDGE: WILCOX J

DATE OF ORDER: 4 SEPTEMBER 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 337 of 1998

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

AND: COAL & ALLIED OPERATIONS PTY LIMITED

Respondent

JUDGE: WILCOX J

DATE: 4 SEPTEMBER 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT WILCOX J: By an Application filed on 17 April 1998, Construction, Forestry, Mining and Energy Union ("CFMEU") sought the imposition of penalties on an employer, Coal & Allied Operations Pty Limited ("Coal & Allied"). The application was made pursuant to s 178 of the Workplace Relations Act 1996 which relevantly provides: "(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) … (3) … (4) The maximum penalty that may be imposed under subsection (1) for a breach of a term of an award, order or agreement is: (a) where the penalty is imposed by the Court: (i) if the breach is taken to have been committed under a provision included in an award or order under paragraph 111(1)(e ) - $5,000 for a body corporate of $1,000 in other cases; and (iia) if the breach is of a term of a certified agreement and continues for more than one day – the total of: (A) $10,000 for a body corporate or $2,000 in other cases; and (B) $5,000 for a body corporate, or $1,000 in other cases, for each day for which the breach continues; and (iib) if the breach is of a term of a certified agreement but subparagraph (iia) does not apply - $10,000 for a body corporate or $2,000 in other cases; and (ii) in any other case - $10,000 for a body corporate or $2,000 in other cases; and (b) where the penalty is not imposed by the Court - $10,000 for a body corporate or $2,000 in other cases. (4A) … (5) A penalty for a breach of a term of an award or order may be sued for and recovered by: (a) an inspector; (b) a party to the award or order; (c) an employer who is a member of an organisation and who is affected by the breach: (ca) a person: (i) whose employment is, or at the time of the breach was, subject to the award; and (ii) who is affected by the breach; (d) an organisation that is affected, or any of whose members are affected, by the breach; or (e) an officer or employee of an organisation that is affected, or any of whose members are affected, by the breach where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation. (5A) … (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. (6A) … (6B) … (7) … (8) … (9) …" CFMEU alleges two award breaches: first, a contravention of cl 6 of The Coal Mining Industry (Production and Engineering) Interim Consent Award, September 1990 ("the 1990 award") or alternatively cl 24 of The Coal Mining Industry (Production and Engineering) Consolidated Award 1997 ("the 1997 award"); second, breach of a 1995 decision of the Local Coal Authority, that decision being said to be a deemed award. The two alleged breaches pertain to different subjects and must be considered separately.