Alfred v Walter Construction Group Limited [2005] FCA 497

FEDERAL COURT OF AUSTRALIA

Alfred v Walter Construction Group Limited [2005] FCA 497 INDUSTRIAL LAW – Workplace Relations Act 1996 (Cth) – Part VIB Certified Agreements – where respondent admitted contravention at commencement of hearing – making of a declaration – fixing of penalty – matters to be considered – totality principle – mitigating factors

Workplace Relations Act 1996 (Cth) s 170NC, s 170NF

Federal Court Rules O 11 r 1B, O 11 r 13

Cameron v R (2002) 209 CLR 339 distinguished Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 applied CPSU, the Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 cited Schanka v Employment National (Administration) Pty Limited (No 2) (2001) 114 FCR 379 referred to INSPECTOR GREGORY CHARLES ALFRED v WALTER CONSTRUCTION GROUP LIMITED (ACN 008 390 074), JOHN STORER, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF AUSTRALIA, PETER ZABOYAK AND DAVID KELLY NSD 775 of 2003 BRANSON J 3 MAY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 775 of 2003

BETWEEN: INSPECTOR GREGORY CHARLES ALFRED

APPLICANT

AND: WALTER CONSTRUCTION GROUP LIMITED (ACN 008 390 074)

FIRST RESPONDENT

JOHN STORER

SECOND RESPONDENT

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF AUSTRALIA

THIRD RESPONDENT

PETER ZABOYAK

FOURTH RESPONDENT

DAVID KELLY

FIFTH RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 3 MAY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. It be declared that, having regard to the facts and matters set out in paragraphs 28, 29, 30, 31, 32 and 33 of the second further amended statement of claim, the third respondent contravened subsection 170NC(1) of the Workplace Relations Act 1996 (Cth) ('the Act') on the occasions, and in the respects, set out in paragraphs 29.7, 31.7 and 33.7 of the second further amended statement of claim; 2. A penalty of $2500 be imposed on the third respondent for the contravention of s 170NC of the Act pleaded by paragraph 29.7 of the second further amended statement of claim; 3. A penalty of $2500 be imposed on the third respondent for the contravention of s 170NC of the Act pleaded by paragraph 31.7 of the second further amended statement of claim; 4. A penalty of $2500 be imposed on the third respondent for the contravention of s 170NC of the Act pleaded by paragraph 33.7 of the second further amended statement of claim; 5. The third respondent pay into the Consolidated Revenue Fund the total of penalties being $7500 within twenty‑eight (28) days of the date of these orders; 6. The proceeding be otherwise dismissed.