Harris, Geoffrey Gordon v. Ansett Transport Industries (Operations) Pty Ltd [1978] FCA 57

Harris, Geoffrey Gordon v. Ansett Transport Industries (Operations) Pty Ltd [1978] FCA 57

The respondent breached the award by appointing Mr Palliaer to the vacant equipment assignment because, on the facts, he had voluntarily transferred in 1972 and was not "retrenched from any division" within clause 4, and the award required the employer to refrain from appointing a pilot to a vacancy except in accordance with the integrated seniority list and the rights conferred by the award. The s.119 proceeding was a civil action for a penalty, not a criminal proceeding, but discovery was unavailable in that penalty action. Despite the breach, no penalty was imposed because the respondent believed its conduct was not a breach and had not previously been the subject of award breach...

Jurisdiction
Australia
Judgment Date
26 July 1978
Procedural Posture
Application Under S.119 of the Conciliation and Arbitration Act 1904 for a Penalty for Alleged Breach of an Award, With Related Applications Concerning Injunctions and Expenses / Reasons for Decision on Breach Delivered on 23 June 1978; Reasons and Orders on Penalty, Expenses and Injunctions Delivered on 26 July 1978
Outcome
The Court found that the respondent committed a breach of the award but imposed no penalty, made no order for the claimant's expenses, refused the application for injunctions, and adjourned Matter V. No. 20 of 1978 sine die.
Legal Topics
['breach of Award' 'action for a Penalty' 'discovery in Penalty Proceedings' 'construction of Industrial Award' 'seniority and Bidding Rights' 'costs and Expenses' 'interlocutory Injunctions']
['industrial Law' 'employment Law' 'civil Procedure'] ['breach of Award' 'action for a Penalty' 'discovery in Penalty Proceedings' 'construction of Industrial Award' 'seniority and Bidding Rights' 'costs and Expenses' 'interlocutory Injunctions']

Case Brief

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Procedural Posture

Application Under S.119 of the Conciliation and Arbitration Act 1904 for a Penalty for Alleged Breach of an Award, With Related Applications Concerning Injunctions and Expenses / Reasons for Decision on Breach Delivered on 23 June 1978; Reasons and Orders on Penalty, Expenses and Injunctions Delivered on 26 July 1978

Legal Issues

  1. 1 ['Whether proceedings under s.119 of the Conciliation and Arbitration Act 1904 are criminal proceedings or an action for a penalty.' 'Whether the respondent was obliged to produce company records in the proceeding.' 'Whether Mr Palliaer was a pilot who had been "retrenched from any division" within clause 4 of the Ansett Transport Industries (Operations) Pty. Ltd. Seniority Award 1977.' 'Whether the award imposed, expressly or by implication, an obligation on the respondent not to appoint a pilot to a vacancy except in accordance with the integrated seniority list and bidding rights.' 'Whether any penalty should be imposed for the breach found.' "Whether s.197A prohibited an order for the claimant's expenses including witnesses' expenses." 'Whether interim injunctions should be granted after the award had been varied by consent and an appeal had been lodged.']

Ratio Decidendi

The respondent breached the award by appointing Mr Palliaer to the vacant equipment assignment because, on the facts, he had voluntarily transferred in 1972 and was not "retrenched from any division" within clause 4, and the award required the employer to refrain from appointing a pilot to a vacancy except in accordance with the integrated seniority list and the rights conferred by the award. The s.119 proceeding was a civil action for a penalty, not a criminal proceeding, but discovery was unavailable in that penalty action. Despite the breach, no penalty was imposed because the respondent believed its conduct was not a breach and had not previously been the subject of award breach...

Court Disposition

The Court found that the respondent committed a breach of the award but imposed no penalty, made no order for the claimant's expenses, refused the application for injunctions, and adjourned Matter V. No. 20 of 1978 sine die.

Orders

  • ['No penalty be imposed in Matter S.A. 2 of 1978.' 'No order be made in favour of the claimant for expenses including the expenses of witnesses in Matter S.A. 2 of 1978.' 'The application for injunctions dated 25 July 1978 in Matter V. No. 20 of 1978 is refused.' 'Matter V. No. 20 of 1978 is adjourned sine die.']