Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACI Operations Pty Ltd [2006] FCA 122 (24 February 2006)

Last Updated: 24 February 2006

FEDERAL COURT OF AUSTRALIA

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACI Operations Pty Ltd

[2006] FCA 122

INDUSTRIAL LAW – application for compensation for non-economic loss under s 298U(c) of the Workplace Relations Act 1996 (Cth) – whether appropriate to award compensation for non-economic loss – circumstances in which non-economic loss should be compensated – evidence required to support claim for compensation for non-economic loss





Workplace Relations Act 1996 (Cth) ss 298U(c), 298U(e)

Australian Municipal Administrative Clerical Services Union v Greater Dandenong City Council (No 2) [2001] FCA 1076, followed

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACI Operations Pty Ltd [2005] FCA 1662, referred to
Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144, followed








COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, POSTAL, PLUMBING and ALLIED SERVICES UNION OF AUSTRALIA v ACI OPERATIONS PTY LTD

VID 1271 OF 2005







MARSHALL J
24 FEBRUARY 2006
PERTH (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1271 OF 2005

BETWEEN:	COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA APPLICANT
AND:	ACI OPERATIONS PTY LTD (ACN 004 230 326) RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	24 FEBRUARY 2006
WHERE MADE:	PERTH (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1. There is no order as to compensation.
















Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1271 OF 2005

BETWEEN:	COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA APPLICANT
AND:	ACI OPERATIONS PTY LTD (ACN 004 230 326) RESPONDENT

JUDGE:	MARSHALL J
DATE:	24 FEBRUARY 2006
PLACE:	PERTH (HEARD IN MELBOURNE)

`

REASONS FOR JUDGMENT

1 In this proceeding the Court has made orders reinstating Mr Colin Williams in his employment with ACI and imposing a monetary penalty on ACI. The only remaining issue to determine is whether the Court should order ACI to pay Mr Williams compensation under s 298U(c) of the Workplace Relations Act 1996 (Cth). The Union only seeks compensation for non-economic loss which it alleges Mr Williams suffered.

2 The parties provided written submissions to the Court dealing with the claim for compensation for non-economic loss.

The competing contentions

3 ACI contended that, under the scheme created by Part XA of the Act, it is not appropriate to award compensation for non-pecuniary loss. It said that an award of that type has yet to be made. In response the Union referred to the judgment of Madgwick J in Australian Municipal Administrative Clerical Services Union v Greater Dandenong City Council (No 2) [2001] FCA 1076 at [10] where his Honour said, in the context of s 298U(e):

"It must be borne in mind that conduct contravening Part XA may be of many different kinds and may occur in many different circumstances. The statutory phrase is aimed at giving the Court maximum power and flexibility [to] do what it thinks appropriate in the circumstances. Further, the phrase in section 298U(f); "any other consequential orders" in my opinion, refers to orders consequential upon any order of a kind falling within ... subs (b), (c) or (e)."

4 Further, as I noted in the first judgment published in this proceeding Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACI Operations Pty Ltd [2005] FCA 1662 at [76], predecessor provisions limited the Court to an order for reimbursement of wages lost. "Compensation" is a broad concept which should not be interpreted in a narrow way. In an appropriate case the Court is able to order compensation for non-economic loss. There is nothing in the scheme of the Act to support the contrary view. I agree, with respect, with the views of Madgwick J as to the flexibility the Court possesses to, in effect, correct injustice by the ordering of compensation beyond the mere reimbursement of lost wages.

5 ACI submitted that if the Court held that it had the power to make an order for compensation which took into account non-economic loss it should be guided by the principles for the award of non-pecuniary loss which have been developed in unfair dismissal jurisprudence. It referred to the judgment of the Full Court of Industrial Relations Court of Australia in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 at 156 where the Court said:

"There is an element of distress in every termination. To ensure compensation is confined within reasonable limits, restraint is required. But in this case there were unusual exacerbating circumstances that make it appropriate to include in the compensation an allowance for the distress unnecessarily caused to Ms Burazin. These circumstances include Ms Burazin having to suffer the humiliating experience of being escorted from Blacktown’s premises by the police. Having regard to these circumstances, the compensation assessed by the trial judge should be increased by the sum of $2000, to $5,000."

6 ACI observed that the only evidence of non-economic loss before the Court was that contained in Mr Williams’ affidavit of 14 October 2005 which referred to the financial stress occasioned by his termination. It said that there was no evidence about any "unusual exacerbating circumstances" associated with the manner of his termination.

7 The Union submitted that the passage in Burazin relied upon by ACI did not articulate a "benchmark test" but only stated why, on the facts before the Court, compensation for distress was appropriate. The Union contended that there is no warrant for limiting compensation for non-economic loss to situations which are "unusual and exacerbating."

8 The Union said that Mr Williams suffered an injury in two ways. First, it said that he was not permitted to leave his work premises in a dignified way but was pressed to leave the factory quickly with security summoned. Second, it said that Mr Williams’ sudden unemployment caused him stress and tension as a result of his family losing the income of its sole breadwinner.

9 The Union conceded that Mr Williams gave no evidence about the impact of ACI’s treatment on him on the day of his termination. It further accepts that some restraint is called for but contends that, in the circumstances, some compensatory order should be made. It also submitted that some compensation should be given to Mr Williams as a result of his affidavit evidence that his termination caused him shock and emotional strain and placed his relationship with his wife under pressure.

Conclusion

10 In the absence of Mr Williams giving evidence about the effect on him of the manner in which he was forced to leave ACI’s premises on the day of his termination, it is exceedingly difficult for the Court to assess what compensation should be ordered in respect of that treatment. The affidavit evidence referred to at [9] above was filed in support of an application for an urgent interlocutory order for reinstatement. The Court, to a large degree, accommodated the concerns of the parties about delay by giving the matter an urgent trial. A prompt judgment was later given. ACI co-operated in effecting the swift reinstatement of Mr Williams. In those circumstances I do not consider that it is appropriate to make an order for compensation for non-economic loss. The stress and uncertainty suffered by Mr Williams and his family was short lived. Any amount of compensation ordered would only be nominal and not worth imposing on ACI which appears to have accepted Mr Williams back into its fold. It has taken no step to seek to stay or delay reinstatement after the Court’s judgment of 18 November 2005.

11 I make no order as to compensation in the circumstances of this case. To do otherwise would not be acting with restraint. In my view Burazin establishes that something more is required for compensation for non-economic loss than the usual element of distress which accompanies most terminations. Whilst "unusual and exacerbating circumstances" is not necessarily the yardstick, there must be something attending a termination which justifies an order for non-economic loss. Such an order may have been made in this case had Mr Williams given evidence of the effect on him of his ejection from his workplace by security personnel.

Order

There be no order as to compensation.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:


Dated: 24 February 2006

Counsel for the Applicant:	Dr C Jessup QC with Mr S Moore
Solicitor for the Applicant:	CEPU
Counsel for the Respondent:	Mr F Parry SC with Mr C O'Grady
Solicitor for the Respondent:	Clayton Utz
Completion of written submissions:	7 February 2006
Date of Judgment:	24 February 2006