Case: Gibbs v City of Altona [1992] FCA 374 ; (1992) 37 FCR 216
Outcome: applied
One reason why this is so is provided by analogy in another earlier award breach case arising from a failure to conduct consultations prior to the effecting of redundancy based terminations, Gibbs v City of Altona [1992] FCA 374 ; (1992) 37 FCR 216 , at 221. In the course of his Judgment in that case Gray J remarked: "It is possible that, had requisite discussions taken place, with the Union in possession of the required information, some way might have been found of avoiding the termination of Mr Clarke's employment. It is not enough to say that the Counsel of the Respondent was unable to see anyway in which Mr Clarke might have been retained in another position. It is possible that the Union might have been able to suggest a way in which this could have been done. The Respondent should have taken the trouble to ascertain precisely what its award obligations where." 32 Here, the University should have taken the trouble to ascertain precisely what its Collective Agreement obligations were. The response under contemplation to the threat to its financial position affected its workforce. That, in itself, should have alerted those advising the Vice Chancellor that it would be prudent to consult the terms of the Collective Agreement. Perhaps it may have been possible at the early stage at which cl 22 operated, after consultation, to conceive of some variant to the course contemplated. Even if it was not, that does not mean that there is no utility either in cl 22 or, for that matter, cl 24 of the Collective Agreement. The digestion by affected employees of the bitter pill of the prospect of non-renewal of their fixed term appointments may well have been eased by the knowledge at an early stage of the truly dire predicament faced by the University and that, notwithstanding the consideration of such input or suggestion as they were able to offer, no other course was open in practice. Suspicion and mistrust in a workplace with resultant potential for industrial disharmony feed upon an absence of candid communication between employer and employee, not on the presence of such communication. Consultation at least allows employees or, where appropriate, their trade union to influence the taking of a decision by an employer. 33 These matters noted, I accept that the fact that the University did engage in some consultation, albeit not at all of the stages contemplated in the Collective Agreement, is a mitigating factor. It seems that this conflation was the result of a misunderstanding on the part of the Vice Chancellor and those advising him as to the precise nature and extent of the consultation obligations assumed by the University under the Collective Agreement. 42 Subsection 719(3) is not applicable in the circumstances of the present case. There was some debate before me as to whether and to what extent s 719(2) of the Workplace Relations Act intruded in the circumstances of the present case. In the City of Altona case, at 223, Gray J had occasion to consider the meaning and the effect of a like provision, s 178(2) , found in the former Conciliation and Arbitration Act 1904 (Cth). His Honour remarked of that provision: The object of s 178(2) appears to be that a party bound by an award and pursuing a course of conduct involving repeated acts or omissions, which ordinarily be regarded as giving rise to a series of separate breaches, should not be punished separately for each of those breaches. If such a party has pursued a course of conduct which gives rise to breaches of several different obligations, there is no reason why it should be treated as immune in respect of its breach of one obligation, merely because it has acted in breach of another. This reasoning leads to the conclusion that each separate obligation found in an award is to be regarded as a "term", for the purposes of s 178 of the Act. The ascertainment of what is a term should depend not on matters of form, such as how the award maker has chosen to designate by numbers or letter the various provisions of an award, but on matters of substance, namely the different obligations which can be spelt out. For these reasons, I incline to the view that each separate obligation imposed by an award is to regarded as a "term", for the purposes of s 178 of the Act. If the different terms impose cumulative obligations or obligations that substantially overlap, it is possible to take into account the substance of the matter by imposing no penalty, or a nominal penalty, in respect of breaches of some terms, but a substantial penalty in respect of others. 43 Like Gray J, I incline to the view that each separate obligation imposed by a collective agreement is an "applicable provision" for the purposes of s 719(2) of the Workplace Relations Act . The breaches of cl 22.2 and cl 22.3 in particular are, therefore, discrete breaches of discrete "applicable provisions". Subsection 719(2) of the Workplace Relations Act has no application to those alleged breaches. It obviously has no application to the alleged breach of cl 24 of the Collective Agreement. That subsection does though, in my opinion, have application to the two alleged breaches by the University of cl 22.3 of the Collective Agreement, one which occurred prior to the decision made on or about 15 May 2007, the other which occurred on 29 May 2007. 44 Such matters concerning the operation of s 719(2) of the Workplace Relations Act acknowledged, there is in this case also "overlap" in this instance, in the operation and application of cl 22 and cl 24 of the Collective Agreement. Thus the same considerations as those described by Gray J in the passage quoted arise in relation to the imposition of penalty. 45 The maximum penalty that may be imposed under s 719(1) of the Workplace Relations Act for a breach of an "applicable provision", here a provision of a collective agreement, is, for a body corporate, 300 penalty units. Materially, the effect of s 4AA of the Crimes Act 1914 is that the amount of a "penalty unit" is $110. That means that the maximum applicable penalty for a given breach of a provision of the Collective Agreement by the University is $33,000. So far as the University is concerned, four breaches in all of the Collective Agreement are alleged. Two of those breaches are affected by the operation of s 719(2) of the Workplace Relations Act . That means that the cumulative total of the maximum applicable penalties in respect of the University is $99,000. This is hardly a case which calls for the imposition of a maximum penalty in respect of any breach, especially having regard to the very timely acknowledgment of the commission of those breaches by the University in these proceedings.