mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267 ; (2001) 107 FCR 93
Outcome: considered
The Full Court in Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267 ; (2001) 107 FCR 93 considered the equivalent of s 792(1)(b) in the previous legislation and stated at page 100: It is sufficient for present purposes to say that if the prejudicial alteration is real and substantial, rather than merely possible or hypothetical, it will answer the description in s 298K(1)(c). 50 The Court is satisfied that the conduct of imposing the ban did alter the position of Mr McCarron to his prejudice as provided by s 792(1)(c). The effect of the ban upon Mr McCarron was real and substantial and not merely hypothetical: see Community and Public Sector Union [2001] FCA 267 ; 107 FCR 93. A further question remains, namely was such ban imposed for a prohibited reason within the meaning of s 793 of the Act? 51 To satisfy section 793(1) of the Act conduct prescribed in s 792 must be carried out, inter alia, because the employee is a member of an industrial association. Mr McCarron was a member of the CPSU and the NDCP was carried out under the auspices of the ACTU with the full support of the CPSU. Ms Skarratt and Mr McIlwain were aware that employees in the OEA were union members and that the NDCP was organised by the ACTU.
Case: CPSU, The Commonwealth and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176
Outcome: referred to
The OEA submits that leave was approved for Mr McCarron after orders of the Full Court in CPSU, The Commonwealth and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176. It is submitted that because Mr McCarron attended the NDCP, his position was not altered to his prejudice. 44 As to alleged breaches of the AWA, it is submitted that Clause 30 of the AWA does not provide an absolute entitlement of flex leave for an employee. Clause 30(a) stipulated that flex leave was 'subject to operational requirements' . Clause 3 of the Policy required 'operational requirements and needs of individuals' to be taken into account when an employee and the manager were settling working arrangements, work patterns and flex-leave arrangements. Clause 1 of the Policy required managers and supervisors to have regard to the operational requirements of the area, the impact of granting the leave on clients and other members of the workgroup and the personal needs of the employee when approving the use of annual leave. The OEA submits that it had regard to its operational requirements when determining to refuse further flex leave and annual leave for participation in the rally.
Case: Greater Dandenong City Council v Australian Municipal, Administrative Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232
Outcome: considered
The motivation for the ban is also a relevant consideration. In Greater Dandenong City Council v Australian Municipal, Administrative Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232 the Full Court considered the interpretation of s 298K of the unamended Act (the equivalent of s 793 of the current Act). At [164] Merkel J observed that s 298K was not concerned with the cause of the prejudicial conduct. Rather, it is concerned with the employer's reason or reasons for engaging in that conduct. [emphasis in the original]
Case: Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34
Outcome: considered
The Court is required to determine whether there is a causal connection between the conduct of the OEA which altered Mr McCarron's position to his prejudice, and the status of Mr McCarron as a union member under s 793(1) of the Act: see Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 at [294] - [296] per Nicholson J. An analysis of the authorities establishes that the Courts have interpreted s 793(1) of the Act as requiring the dominant or immediate purpose of the conduct to be considered and not the ultimate purpose in determining the motivation for the prohibited conduct. Such approach has been applied in statutory interpretation of other statutes: see for example Wribass Pty Limited v Swallow (1979) 38 FLR 92 at 104-106 and Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employee's Union (1979) 42 FLR 331 at 349 which involved the interpretation of s 45D of the Trade Practices Act 1974 (Cth).
Case: McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111
Outcome: considered
The ban affected all employees in the OEA, whether members of the CPSU or otherwise. However this circumstance does not lead to the conclusion that it was therefore not imposed for a 'prohibited reason'. In McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 at 355 Greenwood J said: Dismissal of employees for a prohibited reason within a group of employees some of whom may be dismissed for a non-prohibited reason does not remove the individual or bilateral character of the prejudicial conduct on the part of the employer as against that employee. It would be an odd thing if the statutory quality of contravening conduct in respect of some employees could be dissolved amongst a group and remedial entitlements otherwise available to the affected individuals thereby lost. The question is whether the conduct, from the standpoint of the individual, notwithstanding others, represents conduct carried out for a prohibited purpose.
Case: Patrick Stevedores Operations No 2 Pty Limited v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1
Outcome: considered
The High Court in Patrick Stevedores Operations No 2 Pty Limited v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at 18, referring to s 298K(1)(c) of the Act being the predecessor to the current s 792(1)(c), said: par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. See also Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 where her Honour considered the scope of the meaning of a prejudicial alteration of an employee's position within the meaning of s 298K(1)(c) of the unamended Act.
Case: Squires v Flight Stewards Association of Australia (1982) 2 IR 155
Outcome: considered
Ellicott J in Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at 183 said of the words prohibiting an employer from injuring an employee in his employment as referred to in s 188 of the Conciliation and Arbitration Act 1904 (Cth): The words "injure in his employment" are in the context of s. 5 words of wide import. I do not regard them as referring only to financial injury or injury involving the deprivation of rights which the employee has under a contract of service. They are, in my view, applicable to any circumstances where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial.
Case: Tasmanian Development and Resources v Martin (2000) 97 IR 66
Outcome: considered
Mr McCarron was entitled to have his leave applications properly considered by the OEA pursuant to the terms of his AWA. Pursuant to clause 30 of the AWA the approval of flex leave is subject to operational requirements. However the existence of operational requirements must be demonstrated and must be genuine and reasonable. The decision of the Full Court in Tasmanian Development and Resources v Martin (2000) 97 IR 66 at [26] provides support for a finding that there must be a factual basis for a conclusion that there were operational requirements which necessitated the ban on leave. The reasons advanced for operational requirements as referred to above amount to no more than, at the highest, an apprehension of staff shortages on the NDCP. Such fear was not based upon any enquiries of past experiences, nor any genuine assessment of the real staffing needs on the NDCP. Had enquiries of the relevant managers been made, the decision to impose the ban would at least have had a foundation. Such enquiries however would have revealed that a total ban, based on the experience of the two prior occasions, would not be necessary. Accordingly, the reasons advanced in support of the decision do not constitute a sufficient basis for imposing the ban on leave. It follows that by imposing such ban the OEA breached clause 30 of Mr McCarron's AWA with the OEA. 80 The CPSU and Mr McCarron also claimed that clause 33 of the AWA between Mr McCarron and the OEA was breached. The text of clause 33 is couched as a statement of the role of the relevant manager in ensuring that flex-leave arrangements provided by clause 30 are made available to employees. The OEA made no submissions on this issue, and in view of the Court's finding that clause 30 has been breached, it is not necessary to determine whether clause 33 creates a contractual right, and if so, whether it has been breached.
Case: The Employment Advocate v National Union of Workers [2000] FCA 710 ; (2000) 100 FCR 454
Outcome: considered
The standard of proof required to determine whether the reason for conduct was prohibited under s 793 is to be considered in accordance with the principle derived from the judgment of Dixon J in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 362: see The Employment Advocate v National Union of Workers [2000] FCA 710 ; (2000) 100 FCR 454 at 464 where Einfeld J said I think that in dealing with these types of civil offences some standard of proof above mere satisfaction on the probabilities is appropriate. The Court is in any event bound by s 140(2) of the Evidence Act 1995 (Cth) to take into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged in determining whether it is reasonably satisfied that the matter has been proved.
Case: Wribass Pty Limited v Swallow (1979) 38 FLR 92
Outcome: cited
The Court is required to determine whether there is a causal connection between the conduct of the OEA which altered Mr McCarron's position to his prejudice, and the status of Mr McCarron as a union member under s 793(1) of the Act: see Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 at [294] - [296] per Nicholson J. An analysis of the authorities establishes that the Courts have interpreted s 793(1) of the Act as requiring the dominant or immediate purpose of the conduct to be considered and not the ultimate purpose in determining the motivation for the prohibited conduct. Such approach has been applied in statutory interpretation of other statutes: see for example Wribass Pty Limited v Swallow (1979) 38 FLR 92 at 104-106 and Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employee's Union (1979) 42 FLR 331 at 349 which involved the interpretation of s 45D of the Trade Practices Act 1974 (Cth).
Case: Accounting Systems 2000 (Developments Pty Ltd) v CCH Australia Ltd (1993) 42 FCR 470
Outcome: applied
conclusion does not exclude the possibility of a claim by Olivaylle for relief under the TPA. The following observations made by Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 505-506 are apposite: (8) The result of this examination of the provisions of the legislation before and after the 1977 Act is that para. 4 (2) (a), in dealing with "conduct" operates generally, in its terms, so that the T.P. Act after the 1977 Act, was to be read as "one connected and combined statement of the will of Parliament . ..": Sweeney v Fitzhardinge ; [1906] HCA 73 ; (1906) 4 CLR 716 at 735. So understood, para. 4 (2) (a) provides significant support for the conclusion reached in this case by the primary Judge, and for the general proposition that the making of a statement as to a presently existing state of affairs, if false, may be the engaging in misleading or deceptive conduct, where the statement is embodied as a provision of a contract. In many cases, there will have been pre-contractual conduct which itself contravenes s. 52. The present case is a striking one because it was presented on a narrower basis, and concerned the giving of the warranties in the contract itself. (9) Where the conduct relied upon involves not a statement as to a presently existing state of affairs, but a representation with respect to a future matter, which is contained purely in a contractual promise, then a case for contravention of s. 52 will involve consideration of the extra steps spelled out in s. 51A of the T.P. Act. Some of the issues that would arise in such a case are discussed by Ormiston J in Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 at 233-241, where reference is made to the relevant authorities in this Court. But this is not a case concerning representations as to future conduct.
Case: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337
Outcome: applied
behalf of Olivaylle it was submitted that this document "is clearly an important part of the background to the Contract". It is certainly part of that background; but in this case too much can be made of that fact. The role of such a document relative to the Contract is as described by Lord Wilberforce in Reardon Smith Line Ltd v Hansen-Tangen ; Hansen-Tangen v Sanko Steamship Co (The Diana Prosperity) [1976] 1 WLR 989 at 995-996, in a passage which commended itself to Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 350 and to Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 462, [22] : In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.
Case: Entores Ltd v Miles Far East Corporation [1955] 2 QB 327
Outcome: applied
acceptance was communicated by email to Olivaylle at its olive grove in Victoria. Experience suggests that email is often, but not invariably, a form of near instantaneous communication. The parties seemed content to assume that the place of contract was either Victoria or New South Wales, content because the common law of Australia was the same in either place and so, too, was the only statute law considered material. There was no suggestion in submissions that the place of contract was, for example, Germany. As a result, the ramifications of the adoption by the parties of email for their written pre-contractual communications, particularly the acceptance, were not explored. As it happens, the subject of formation of contracts by email has been explored in depth in an article by a local academic, Christensen S, "Formation of Contracts by Email Is it Just the Same as the Post?" (2001) 1(1) Queensland University of Technology Law and Justice Journal 22. Ms Christensen details there arguments for and against the assimilation of email communications with "the postal rule" or with what one might term "the instantaneous communication rule" and also the local adoption of international convention which touches on the subject. Having regard to the position taken by the parties in this case, it is not necessary to give detailed consideration to the point. It is enough to observe that I consider that there are analogies to be drawn with the way the law developed in relation to telex communications in an earlier era where what I have termed "the instantaneous communication rule" came to be adopted, perhaps at the expense of scientific precision but not so in relation to common commercial understanding. Thus, by analogy with cases concerning the position with what were, or were treated as, other forms of instantaneous communication, I consider that the contract was made where the acceptance was received, ie in Victoria: Entores Ltd v Miles Far East Corporation [1955] 2 QB 327; W A Dewhurst &amp; Co Pty Ltd v Cawrse [1960] VR 278 ; Express Airways v Port Augusta Air Services [1980] Qd R 543; Reese Bros Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 5 BPR 11 ,106.
Case: Express Airways v Port Augusta Air Services [1980] Qd R 543
Outcome: applied
acceptance was communicated by email to Olivaylle at its olive grove in Victoria. Experience suggests that email is often, but not invariably, a form of near instantaneous communication. The parties seemed content to assume that the place of contract was either Victoria or New South Wales, content because the common law of Australia was the same in either place and so, too, was the only statute law considered material. There was no suggestion in submissions that the place of contract was, for example, Germany. As a result, the ramifications of the adoption by the parties of email for their written pre-contractual communications, particularly the acceptance, were not explored. As it happens, the subject of formation of contracts by email has been explored in depth in an article by a local academic, Christensen S, "Formation of Contracts by Email Is it Just the Same as the Post?" (2001) 1(1) Queensland University of Technology Law and Justice Journal 22. Ms Christensen details there arguments for and against the assimilation of email communications with "the postal rule" or with what one might term "the instantaneous communication rule" and also the local adoption of international convention which touches on the subject. Having regard to the position taken by the parties in this case, it is not necessary to give detailed consideration to the point. It is enough to observe that I consider that there are analogies to be drawn with the way the law developed in relation to telex communications in an earlier era where what I have termed "the instantaneous communication rule" came to be adopted, perhaps at the expense of scientific precision but not so in relation to common commercial understanding. Thus, by analogy with cases concerning the position with what were, or were treated as, other forms of instantaneous communication, I consider that the contract was made where the acceptance was received, ie in Victoria: Entores Ltd v Miles Far East Corporation [1955] 2 QB 327; W A Dewhurst &amp; Co Pty Ltd v Cawrse [1960] VR 278 ; Express Airways v Port Augusta Air Services [1980] Qd R 543; Reese Bros Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 5 BPR 11 ,106.
Case: JAD International Pty Ltd v International Trucks Australia Ltd (1994) 50 FCR 378
Outcome: applied
production line has been used certainly for 4 years (and perhaps now also a 5 th ). It is hardly new any longer. It has been used to derive income. It is not possible to effect perfect restitution after this length of time. I accept that this does not automatically rule out the making of an order for rescission: JAD International Pty Ltd v International Trucks Australia Ltd (1994) 50 FCR 378. Delay and depreciation of the goods sold are but factors to take into account in the exercise of a discretion. To make an order now for rescission and return of the goods would require the making of compensatory orders in favour of Flottweg to take account of what I infer must be an inevitable deterioration in the value of the goods after this length of time and to make allowance for the benefit of the use Olivaylle has enjoyed. I have no evidence that would allow me justly to assess the diminution in value of the machines in the production line, only to form a conclusion that they must have depreciated. Further, the goods are not as Flottweg sold them or even last modified them. There is evidence before me that, at Olivaylle's request, Mr Carey has made modifications to the line since July 2006. As to delay, Olivaylle was requested as long ago as January 2007 by Flottweg to return the goods. I am not persuaded that it was left with no alternative to keep them, at least beyond the 2007 season. It made no response to this. It was in July 2006 that Olivaylle purported to withdraw from the Contract. On Mr De Moya's evidence, it seems that Flottweg was but one of a number of potential suppliers of a production line. On the evidence, it took less than a year once the order was placed for Flottweg to deliver, install and commission the production line. Olivaylle seems to have done nothing to that end. Even though I further accept that the power conferred to order rescission conferred by virtue of s 87 of the TPA is wider than under the general law ( JAD International Pty Ltd v International Trucks Australia Ltd , supra), it seems to me that, even at the end of the 2007 season, the considerations to which I have adverted would not have made that remedy just as a matter of discretion.
Case: Long v Lloyd [1958] EWCA Civ 3 ; [1958] 2 All ER 402
Outcome: cited
of course, assumes that Olivaylle should not be regarded as having earlier elected to affirm the Contract. In February 2006 it believed, based on its experience of the 2005 season, that the production line was non-compliant in each of its processing speed and its ability to achieve 1% or less v/v of atmospheric oxygen. Yet it chose then not to bring the Contract to an end but rather to seek to rely upon the peculiar right of "withdrawal" after allowance of a reasonable period of grace that it conferred. Thereafter, it chose to use the production line. In my opinion, that amounted to an affirmation of the Contract: Long v Lloyd [1958] EWCA Civ 3 ; [1958] 2 All ER 402. Olivaylle's decision to install, commission and use an on-site bottling plant after what it believed was Flottweg's non-compliance with contractual specifications is also consistent with its having decided to affirm the Contract and retain the production line. As to the claims based on the Contract, there is a limitation of liability clause present. That clause would not, in my opinion, affect the operation of the contractual provision for "withdrawal". The limitation of liability clause would though limit the amount of any further sum which could be awarded to Olivaylle under the Contract to 5% of the total price, ie to &#8364;33,930.00. The language of the clause is such that it would limit each of Olivaylle's consequential loss claim and it loss of profits claim to no more than this amount in aggregate. For reasons which will shortly emerge, these claims might aptly be described as fantastic.