Clark v Korda [2005] FCA 56

Clark v Korda [2005] FCA 56

The CR91 Policy applied to permanent Ansett pilots on its plain terms and was preserved by Clause 21(b) of EBA IV where compulsory redundancy occurred and the pilot would be disadvantaged under the BRP. Because the BRP caps were aspects of the BRP regime only, including the $175,000 cap, they did not limit entitlements calculated under the CR91 Policy. The plaintiffs were therefore entitled to the declaration sought, limited to permanently employed pilots.

Jurisdiction
Australia
Judgment Date
08 February 2005
Procedural Posture
Part IVA Representative Proceeding; Appeal From a Decision of Deed Administrators Disallowing Proofs of Debt / Reasons for Judgment and Declaration
Outcome
Declaration made for the plaintiffs; liberty to apply; costs reserved for hearing.
Legal Topics
['deed of Company Arrangement' 'proofs of Debt' 'redundancy Entitlements' 'enterprise Bargaining Agreement Interpretation' 'no Disadvantage Redundancy Clause' 'capping Provisions']
['corporations' 'employment and Industrial Law'] ['deed of Company Arrangement' 'proofs of Debt' 'redundancy Entitlements' 'enterprise Bargaining Agreement Interpretation' 'no Disadvantage Redundancy Clause' 'capping Provisions']

Case Brief

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Procedural Posture

Part IVA Representative Proceeding; Appeal From a Decision of Deed Administrators Disallowing Proofs of Debt / Reasons for Judgment and Declaration

Legal Issues

  1. 1 ['Whether airline pilots made compulsorily redundant by the Deed Administrators were entitled to have severance and redundancy pay calculated under the CR91 Policy rather than the Business Recovery Redundancy Program in EBA IV where CR91 produced greater entitlements.' 'Whether the CR91 Policy applied to pilots who were permanent employees of Ansett.' 'Whether the 104 week cap or $175,000 cap in Clause 21 of EBA IV applied to entitlements calculated under the CR91 Policy.']

Ratio Decidendi

The CR91 Policy applied to permanent Ansett pilots on its plain terms and was preserved by Clause 21(b) of EBA IV where compulsory redundancy occurred and the pilot would be disadvantaged under the BRP. Because the BRP caps were aspects of the BRP regime only, including the $175,000 cap, they did not limit entitlements calculated under the CR91 Policy. The plaintiffs were therefore entitled to the declaration sought, limited to permanently employed pilots.

Court Disposition

Declaration made for the plaintiffs; liberty to apply; costs reserved for hearing.

Orders

  • ["The airline pilots who were permanently employed by Ansett Australia Limited (subject to Deed of Company Arrangement) as at 12 September 2001 are entitled to have the amounts due and payable to them for severance and redundancy pay calculated and paid in accordance with the 'Ansett Airlines of Australia and...