Ian Robertson v Marrickville Council [2003] NSWIRComm 394

Ian Robertson v Marrickville Council [2003] NSWIRComm 394

Marrickville Council contravened the mandatory award requirement to refer proposed alterations to the spread of hours for new or vacant positions to the consultative committee before advertising. Although the Council acted on erroneous advice, made no monetary gain, had a good industrial record, and the breaches arose from a single course of conduct, a pecuniary penalty was warranted to promote compliance with award obligations by the Council and employers generally.

Jurisdiction
Australia
Judgment Date
14 November 2003
Procedural Posture
Prosecutions and Recovery of Civil Penalty for Alleged Breach of Industrial Instruments / Judgment Following Agreed Facts and Plea of Guilty
Outcome
Breaches established and pecuniary penalties imposed.
Legal Topics
['breach of Industrial Instruments' 'award Hours Clause' 'consultative Committee Referral' 'assessment of Pecuniary Penalty']
['industrial Relations' 'civil Penalties'] ['breach of Industrial Instruments' 'award Hours Clause' 'consultative Committee Referral' 'assessment of Pecuniary Penalty']

Case Brief

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Procedural Posture

Prosecutions and Recovery of Civil Penalty for Alleged Breach of Industrial Instruments / Judgment Following Agreed Facts and Plea of Guilty

Legal Issues

  1. 1 ['Whether Marrickville Council breached the relevant hours clauses of the Local Government awards by altering the spread of hours for new or vacant positions without referral to the consultative committee before advertising.' 'Whether the proceedings under s 357 of the Industrial Relations Act 1996 should be treated as criminal or civil in nature for purposes of onus and procedure.' 'What pecuniary penalty should be imposed for the established breaches.']

Ratio Decidendi

Marrickville Council contravened the mandatory award requirement to refer proposed alterations to the spread of hours for new or vacant positions to the consultative committee before advertising. Although the Council acted on erroneous advice, made no monetary gain, had a good industrial record, and the breaches arose from a single course of conduct, a pecuniary penalty was warranted to promote compliance with award obligations by the Council and employers generally.

Court Disposition

Breaches established and pecuniary penalties imposed.

Orders

  • ['Marrickville Council is to pay a pecuniary penalty of $500.00 in each matter, totalling $5,000.00.' 'A moiety of the penalties is ordered to DEPA.' "Marrickville Council is to pay the prosecutor's costs of the proceedings in an amount agreed or, failing agreement, assessed."]