Carr v Higgins Coatings Pty Ltd [2005] FCA 1809

FEDERAL COURT OF AUSTRALIA

Carr v Higgins Coatings Pty Ltd [2005] FCA 1809

WORKPLACE RELATIONS – industrial action – payments to employees for period while they were taking industrial action – whether penalty should be imposed – whether declaration should be made – whether declaration of agreed contravention is proper exercise of Court's power.

Workplace Relations Act 1996 (Cth) ss 4(1), 187AA, 187AC, 187AD, 347 Federal Court of Australia Act 1976 (Cth) s 21 Workplace Relations Regulations 1996 (Cth) reg 32B

Australian Competition and Consumer Commission v Francis [2004] FCA 487 (2004) 142 FCR 1 referred to Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 (2003) 216 CLR 53 considered

DENNIS JAMES CARR vHIGGINS COATINGS PROPRIETARY LIMITED

(ACN 005 632 708) VID 1512 of 2004 GRAY J 24 NOVEMBER 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1512 of 2004

BETWEEN: DENNIS JAMES CARR

APPLICANT

AND: HIGGINS COATINGS PROPRIETARY LIMITED

(ACN 005 632 708)

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 24 NOVEMBER 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. Dennis James Carr be substituted for Adrian Edwards as the applicant in the proceeding and the title of the proceeding be amended accordingly. 2. 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

VICTORIA DISTRICT REGISTRY VID 1512 of 2004

BETWEEN: DENNIS JAMES CARR

APPLICANT

AND: HIGGINS COATINGS PROPRIETARY LIMITED

(ACN 005 632 708)

RESPONDENT

JUDGE: GRAY J

DATE: 24 NOVEMBER 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This proceeding arises out of events on 5 August 2003 at a building site at 336 Russell Street, Melbourne, at which a building called Concept Blue Apartments was being constructed. At the time, the respondent, a body corporate, had employees on the site whose task was to perform painting work in the course of the construction of the building. On that day, two particular employees, Michael Czyzewski and Ian Dryden, either did not commence work or, having commenced work, ceased work at about 8.30 am, and remained at the site for the balance of what would have been their working hours, without performing any work. The respondent paid them in respect of that time. The total amount of $334.40 was paid to the two employees. 2 In consequence of that, an inspector appointed under the Workplace Relations Act 1996 (Cth) ('the Workplace Relations Act) commenced this proceeding in this Court by filing an application on 13 December 2004. The name of that inspector was Adrian Edwards. Mr Edwards has now resigned from the employ of the Australian Building and Construction Commission, formerly the Building Industry Taskforce. As a consequence of his resignation, a notice of motion was filed in the Court on 22 November 2005, seeking leave to substitute Dennis James Carr, another inspector appointed under the Workplace Relations Act, as the applicant in the place of Mr Edwards. The motion is not opposed and, in the circumstances, it is appropriate to order that Mr Carr be substituted for Mr Edwards as the applicant in the proceeding, and that the title to the proceeding be amended accordingly. 3 The application seeks relief substantially of two kinds. In the first place, it seeks a declaration that the respondent has contravened s 187AA of the Workplace Relations Act, by making a payment or payments to each of Mr Czyzewski and Mr Dryden for a period or periods on 5 August 2003 in which they engaged in industrial action. The second form of relief sought is the imposition of a penalty, or penalties, pursuant to s 187AD(1) of the Workplace Relations Act, for contravention or contraventions of s 187AA by making payments to Mr Czyzewski and Mr Dryden in relation to a period or periods during which they engaged in industrial action. 4 Section 187AA of the Workplace Relations Act provides relevantly as follows: '(1) 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: … (b) the employer was or is a constitutional corporation bound by an award, a certified agreement or an AWA during that period'.