Smith v Zinifex Australia Limited (No 2) [2008] FCA 1836

FEDERAL COURT OF AUSTRALIA

Smith v Zinifex Australia Limited (No 2) [2008] FCA 1836

INDUSTRIAL LAW – admitted application of duress in connection with Australian Workplace Agreement in contravention of Workplace Relations Act 1996 – mitigation of penalty due to actions of respondent – no substantial need for specific deterrent – general deterrence relevant Industrial Relations Act 1984 (Tas) Workplace Relations Act 1996 (Cth) s 170WG(1) Smith v Zinifex Australia Ltd [2008] FCA 532 cited RAYMOND SMITH v ZINIFEX AUSTRALIA LIMITED

TAD 46 of 2007

HEEREY J

5 DECEMBER 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY TAD 46 of 2007

BETWEEN: RAYMOND SMITH

Applicant

AND: ZINIFEX AUSTRALIA LIMITED

Respondent

JUDGE: HEEREY J

DATE OF ORDER: 5 DECEMBER 2008

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The Second Respondent be removed as a party to this proceeding. 2. The Applicant have leave to file an Amended Statement of Claim and Amended Application both dated 27 November 2008. 3. The Respondent have leave to file a Defence to Amended Statement of Claim also dated 27 November 2008. THE COURT NOTES THAT: 4. The parties have filed an agreement entitled Statement of Agreed Facts dated 27 November 2008, in accordance with s 191(3) of the Evidence Act 1995 (Cth). THE COURT DECLARES THAT: 5. On 9 December 2005, the Respondent contravened s 170WG(1) of the Workplace Relations Act 1996 (Cth) as then in force by making statements at a meeting at which each of Geoffrey Charles Holmes, Shaun Maxwell Russell and David Glen Scurrah were present which amounted to the application of duress to the Labour Hire Employees in connection with an AWA. 6. In December 2005, the Respondent contravened s 170WG(1) of the Workplace Relations Act 1996 (Cth) as then in force by applying duress to Geoffrey Walter Bailey in connection with an AWA. THE COURT ORDERS THAT: 7. In relation to the contravention referred to in order 5 hereof, a penalty of $10,000 be imposed upon the Respondent. 8. In relation to the contravention referred to in order 6 hereof, a penalty of $5,000 be imposed upon the Respondent. 9. The penalties imposed in Orders 7 and 8 be paid by the Respondent into consolidated revenue within 21 days. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA