Case: Electrolux Home Products Pty Ltd v The Australian Workers Union [2004] HCA 40 (2004) 221 CLR 309
Outcome: referred to
to the first of those issues a number of considerations are relevant. In any event, in the consideration of penalty, there were undoubtedly substantial mitigating circumstances in the present case. An important one is that, at the time when the contraventions occurred, both parties had taken the view that the relevant provisions of the certified agreement known as EBA6 were to be regarded, at least potentially, as non-pertaining provisions, and therefore were to be removed from the succeeding agreement (EBA7) by agreement of the parties, in order to ensure the certification of EBA7. The concern about whether those provisions pertained to the relevant employees of Qantas arose as a result of the judgment of the High Court in Electrolux Home Products Pty Ltd v The Australian Workers Union [2004] HCA 40 (2004) 221 CLR 309. The fact that the applicant, a union, was the effective recipient of a benefit from the operation of those provisions apparently caused both parties to assume that they might be non-pertaining provisions. This resulted in the agreement to remove the provisions from EBA7, to ensure the certification of that agreement. In the event, in my reasons for judgment delivered on 23 December 2008, I held that the provisions were enforceable and that breaches of them had occurred. The breaches occurred in the last days of the operation of EBA6. The employees concerned had already approved by ballot in accordance with the Workplace Relations Act the terms of EBA7, from which the supposed non-pertaining provisions had been removed. Application had been made to the Australian Industrial Relations Commission to certify the new agreement. The hearing of that application had been adjourned at the request of the applicant, with the agreement of the respondent, because the applicant's new office-bearers had just taken office. One of the contraventions, the failure to pay Captain Woods his entitlement to salary calculated at the rate applicable to the president of the applicant under the agreement, was simply the result of neglect. The evidence, and the finding that I made, was that the normal process was to pay in arrears at the end of a future pay period but that was never done in Captain Woods' case. As for the other contraventions, they involved failure to release two pilots from their duties in accordance with the provisions of EBA6, to enable them to attend to the applicant's business. The refusal to release them from duties arose principally from a failure to understand the significance of the expression, "operational requirements," in the relevant provisions and to distinguish operational requirements from inconvenience in managing the pilots' roster. As a consequence, it can truly be said that neither of the contraventions was wilful. Each was explicable and the degree of culpability of the respondent is substantially mitigated by that. As for general deterrence, the mitigating factors are such that little purpose would be served by imposing a financial penalty. It certainly is not the case that, in every situation a party can insist on a construction of a provision of an award or certified agreement, later found to be unsustainable, and avoid the imposition of a financial penalty. Nevertheless there are cases where the adoption of a construction that is fairly open permits a court to say that the imposition of a financial penalty would not be appropriate. The special feature of this case is that both parties at the relevant time had taken the position that the relevant provisions of EBA6 were not legally enforceable, because they were non-pertaining pursuant to the Electrolux judgment. In those circumstances, it seems to me, that no purpose of general deterrence would be served by the imposition of a financial penalty. For those reasons the agreement of the parties that no financial penalty is any longer appropriate falls within the proper range to which the Court should have regard in determining issues of penalties. Accordingly, I propose to impose no financial penalty in respect of any of the relevant breaches. The parties are, of course, agreed as I suggested they needed to be, that the respondent is obliged to pay Captain Woods the amount of his underpayment and interest on that amount. Those orders will be made. As I have also said, neither party seeks to visit the question of costs, so that no order for costs will be made, on the assumption that the general rule applies that a proceeding in a matter arising under the Workplace Relations Act does not attract costs. There remains the question of the declarations. I have in the past taken the view, to which I adhere that it is generally inappropriate, to make declarations that do no more than record the findings or conclusions the Court reaches on issues of fact and law in any particular case. I have recognised in the past that, particularly under the Trade Practices Act 1974 (Cth), there has grown up a practice of making declarations which express findings as to contraventions of various provisions. My own view is that that practice is unfortunate, because the declarations so made do not amount to true declarations of right, pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth). A true declaration of right provides the parties with a determination of some controversy on which they can base their future relationships. In the present case, the declarations proposed would at least have the effect of expressing the conclusion that the provisions concerned were enforceable at law. Despite Electrolux , they were not non-pertaining provisions, and were therefore binding on the parties and ought to have been complied with, not only in respect of the particular pilots but in respect of all others. For those reasons I am prepared to depart from my usual antipathy towards declarations and to make orders in the terms sought. The orders I make are as follows: The Court declares that: 1. By failing to pay Captain Ian Woods his salary at the rate calculated in accordance with cl 24.2 of the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2003-2004, in respect of the period from 7 to 15 November 2005, the respondent contravened cl 46.2, coupled with cl 46.6.1 of the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2003-2004. 2. By refusing to release Captain Simon Tuma from his allocated flying duties on 8 November 2005, the respondent contravened cl 45.3.1(a) of the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2003-2004. 3. By refusing to release Captain Ian Smith from his allocated flying duties on 11 November 2005, the respondent contravened cl 45.3.1(a) of the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2003-2004. The Court orders that: The respondent pay to Captain Ian Woods the sum of $1,385.83 (less any applicable tax). The respondent pay to Captain Ian Woods interest on the sum referred to in para 4 above, in the amount of $501.92. 6. Otherwise, the application be dismissed, with no order as to costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 14 May 2009 Counsel for the applicant: Mr S Moore Solicitor for the applicant: AJ Macken &amp; Co Counsel for the respondent: Mr R Kenzie QC with Mr S Meehan Solicitor for the respondent: Blake Dawson Date of Hearing: 27 April 2009 Date of Judgment: 27 April 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/500.html