Smith v Zinifex Australia Limited (No 2) [2008] FCA 1836

Smith v Zinifex Australia Limited (No 2) [2008] FCA 1836

Zinifex was liable for Mr Emmett's conduct because he acted within the scope of his responsibilities. His statements to labour hire employees were likely and intended to pressure them to enter AWAs, despite a significant power disparity, and amounted to duress in connection with AWAs in contravention of s 170WG(1)....

Source-derived case information.

Jurisdiction
Australia
Judgment Date
05 December 2008
Procedural Posture
Industrial Law Civil Penalty Proceeding / Penalty and Orders After Admitted Contraventions and Agreed Facts
Outcome
Declarations made that the respondent contravened s 170WG(1) of the Workplace Relations Act 1996 (Cth); penalties of $10,000 and $5,000 imposed.
Legal Topics
['australian Workplace Agreements' 'duress' 'civil Penalties' 'mitigation of Penalty' 'specific Deterrence' 'general Deterrence']
['industrial Law'] ['australian Workplace Agreements' 'duress' 'civil Penalties' 'mitigation of Penalty' 'specific Deterrence' 'general Deterrence']

Source-derived case record

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Procedural Posture

Industrial Law Civil Penalty Proceeding / Penalty and Orders After Admitted Contraventions and Agreed Facts

Legal Issues

  1. 1 ['Whether the respondent contravened s 170WG(1) of the Workplace Relations Act 1996 (Cth) by applying duress in connection with Australian Workplace Agreements.' 'What penalties should be imposed for the admitted contraventions.']

Ratio Decidendi

Zinifex was liable for Mr Emmett's conduct because he acted within the scope of his responsibilities. His statements to labour hire employees were likely and intended to pressure them to enter AWAs, despite a significant power disparity, and amounted to duress in connection with AWAs in contravention of s 170WG(1). The agreed penalties of $10,000 and $5,000 were appropriate because there were mitigating facts and no substantial need for specific deterrence, but general deterrence remained relevant.

Court Disposition

Declarations made that the respondent contravened s 170WG(1) of the Workplace Relations Act 1996 (Cth); penalties of $10,000 and $5,000 imposed.

Orders

  • ['The Second Respondent be removed as a party to this proceeding.' 'The Applicant have leave to file an Amended Statement of Claim and Amended Application both dated 27 November 2008.' 'The Respondent have leave to file a Defence to Amended Statement of Claim also dated 27 November 2008.' 'The parties have filed an...