Industrial Relations Commission of New South Wales CITATION: Danks v. Anndak Formwork Pty Limited [2008] NSWIRComm 1029 APPLICANT Construction, Forestry, Mining and Energy Union PARTIES: RESPONDENT Anndak Formwork Pty Limited FILE NUMBER(S): IRC 224 of 2008 CORAM: Connor C CATCHWORDS: claim of victimisation of apprentice - building industry - an agreement reached in principle - deed of release completed - failure to comply with the terms of the deed of release by employer - failure to appear in proceedings - ex parte proceedings - superannuation and redundancy pay not paid - orders made LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Dima Homes Case (1989) 5 AILR Rep.4 HEARING DATES: 03/04/2008 EXTEMPORE JUDGMENT DATE : 3 April 2008 APPLICANT Leah Charlson Construction, Forestry, Mining and Energy Union LEGAL REPRESENTATIVES: RESPONDENT no appearance DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 3 April, 2008 Matter No IRC 224 of 2008 Shane Danks and Anndak Formwork Pty Limited Application under S.213 of the Industrial Relations Act, 1996 by the Construction, Forestry, Mining and Energy Union DECISION [2008] NSWIRComm 1029 1 The Construction, Forestry, Mining and Energy Union lodged an application under S.213 of the 1996 Industrial Relations Act for and on behalf of its member, Mr Shane Danks, who was engaged as an indentured apprentice with Anndak Formwork Pty Limited from Monday, 20 February, 2006 to Friday, 15 February, 2008. He ceased working for Anndak at that time and the CFMEU alleges that the reason his services were terminated was his joining the CFMEU and complaining over underpayments of entitlements. The matter was allocated to me and it was the subject of a preliminary hearing before me on Monday, 17 March, 2008. 2 I was informed in a letter by the CFMEU dated Thursday, 28 February, 2008 that this matter has been settled in principle by conciliation. It was my intention to grant the CFMEU leave to discontinue these proceedings on Monday, 17 March, 2008 in chambers in accordance with Rule 138 but I was subsequently informed by the CFMEU on Wednesday, 12 March, 2008 that the payment in accordance with the terms of the settlement had not actually been made and the file therefore remained active. 3 There was no appearance by Anndak in the proceedings on Monday, 17 March, 2008 but Ms Charlson, representing the CFMEU in the proceedings provided me with a copy of a deed of release dated Thursday, 28 February, 2008 and signed by the parties to formalise the agreement reached by them. The essential terms of the deed of release are as follows: (i) that Anndak provide a statement of service for Mr Danks on letterhead within seven days; (ii) that Anndak pay $4,000.00 to Mr Danks' superannuation fund within fourteen days; (iii) that Anndak pay the sum of $3,500.00 as a bona fide redundancy payment in two equal instalments on Friday, 7 March, 2008 and Friday, 14 March, 2008; and (iv) that Mr Danks and Anndak take the steps necessary to achieve a mutual cancellation of Mr Danks' apprenticeship contract. 4 I adjourned the matter for further proceedings on Thursday, 3 April, 2008, informing Anndak of those proceedings by mail, e-mail and mobile telephone. In the proceedings on Thursday, 3 April, 2008 I had indicated that I was prepared to make an order confirming the clear terms of the agreement outlined in the deed of release insofar as it concerned remuneration and, in fact, the CFMEU also wrote to Anndak on Monday, 17 March, 2008 in the following terms: "...If the money required under the deed of release executed by the parties on Thursday, 28 February, 2008 is not paid in full by Thursday, 3 April, 2008, the Commissioner indicated he is likely to make orders in respect of the payment of the money. We put you on notice that we will then seek to enforce those orders..." 5 In the proceedings on Thursday, 3 April, 2008 there was again no appearance by Anndak and Ms Charlson pressed for orders. She informed me that some money had been paid to Mr Danks, including $500.00 on Wednesday, 2 April, 2008 but the $4,000.00 payment to the superannuation fund was unpaid and $1,000.00 remained for the redundancy payment. Mr Danks' apprenticeship contract has been cancelled. 6 In the circumstances, I propose to proceed ex parte. In doing so, there are two requirements placed on me - proper and fair notice to the party who fails to appear in the proceedings and sufficient particulars to regulate the decision making process [the Dima Homes Case (1989) 5 AILR Rep.4]. The deed of release, signed by the parties, is clear in its terms insofar as it concerns a monetary settlement of the CFMEU claim on behalf of Mr Danks. The dates for the payment of all outstanding sums has already expired. If Anndak has failed to pay to the superannuation fund nominated by Mr Danks, I see no reason not to pay to directly to Mr Dank the outstanding sum in that respect and leave him to the task of making his own superannuation provisions. ORDER 1. Anndak Formwork Pty Limited shall pay to Mr Shane Danks the sum of $5,000.00 within14 days. 2. This order shall take effect on and from Thursday, 3 April, 2008. P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.