Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406

FEDERAL COURT OF AUSTRALIA

Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd

[2002] FCA 1406

INDUSTRIAL LAW – where employees employed pursuant to an award – where employees and employer entered into employment agreement – where employment agreement provided for conditions of employment which were lower than minimum conditions provided for by award – whether breach of award by failure to pay certain amounts for lunch breaks, sick leave and public holidays – whether parties can contract out of provisions of award – whether doctrine of estoppel relevant to operation of award – whether over‑award payments pursuant to employment agreement can be set‑off against under‑award payments in relation to leave entitlements – where over‑award payments pursuant to employment agreement not designated as payable in respect of award entitlements to leave – whether court should exercise discretion pursuant to s 178(6) Workplace Relations Act 1996 (Cth) not to order payment of leave entitlements given over‑award payments had been made. COSTS – where ordinary rule under Workplace Relations Act 1996 (Cth) is that costs are not awarded – where costs can be awarded pursuant to s 347(1) Workplace Relations Act 1996 (Cth) if proceedings instituted vexatiously or without reasonable cause – whether proceeding instituted "vexatiously" or "without reasonable cause" given that claim was initially brought pursuant to an award to which the employer was not a party. INTEREST – applicable interest rate to be awarded pursuant to s 179A(1) Workplace Relations Act 1996 (Cth) and s 51A(1) Federal Court of Australia Act 1976 (Cth) – whether appropriate interest rate a commercial interest rate or the relevant State penalty interest rate.

Workplace Relations Act 1996 (Cth): s 178, s 179A(1), s 347(1) Clothing Trades Award 1982 Josephson v Walker (1914) 18 CLR 691, applied Byrne v Australian Airlines Ltd (1995) 185 CLR 410, applied Kidd v Savage River Mines (1984) 6 FCR 398, applied Jackson v Monadelphous Engineering Associates Pty Ltd (Moore J, Industrial Relations Court of Australia, 17 October 1997, unreported), applied Walsh v Commercial Travellers' Association of Victoria [1940] VLR 259, applied Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1986) 73 ALR 373, applied Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, referred to Heidt v Chrysler Australia Limited (1975) 26 FLR 257, applied Hamilton v Oades (1989) 166 CLR 486, referred to Thompson v Hodder (1990) 21 FCR 467, applied EMCL Pty Ltd v Esanda Finance Corporation Ltd (No 2) (1998) 160 ALR 382, applied Metropolitan Health Service Board v Australian Nursing Federation (2000) 99 FCR 95, applied Ray v Radano (1967) AR(NSW) 471, considered Pacific Publications Pty Ltd v Cantlon (1983) 4 IR 415, applied Printing and Kindred Industries Union v Vista Paper Products Pty Ltd (1994) 127 ALR 673, applied Public Holidays Test Case (Print L4534, 4 August 1994), referred to Poletti v Ecob (1989) 91 ALR 381, applied Lynch v Buckley Sawmills Pty Ltd (1984) 3 FCR 503, applied Logan v Otis Elevator Co Pty Ltd [1999] 94 IR 218, applied Clothing & Allied Trades Union of Australia v J & J Saggio Clothing Manufacturers Pty Ltd (1990) 34 IR 26, referred to Namol Pty Limited v AW Baulderstone Pty Limited (No 2) (1993) 47 FCR 388, referred to Nagy v Masters Dairy Ltd (1997) 150 ALR 273, referred to Alec Finlayson Pty Ltd v Armidale City Council (Burchett J, 6 March 1998, unreported), referred to Kettle Chip Company Pty Ltd v Apand Pty Ltd (No 2) (1998) 83 FCR 466, referred to McCormick v Riverwood International (Australia) Pty Ltd [2000] FCA 32, referred to TEXTILE, CLOTHING AND FOOTWEAR UNION OF AUSTRALIA v GIVONI PTY LIMITED V 250 of 2000 GOLDBERG J 15 NOVEMBER 2002 MELBOURNE