Unilever Australia Ltd, AP Foods (Sydney) Pty Ltd, AWU and TWU - various proceedings re Proposed Sale of Marrickville Site, Re [2005] NSWIRComm 3

Unilever Australia Ltd, AP Foods (Sydney) Pty Ltd, AWU and TWU - various proceedings re Proposed Sale of Marrickville Site, Re [2005] NSWIRComm 3

The preferable construction of Industrial Relations Act 1996 s 16 is that an interim award has a nominal term, being the term expressed in the award as commencing on its date of operation and ending at the end of its specified period, and that s 16(1) applies so the interim award continues to have legal effect after that term until rescinded by the Commission. Nevertheless, because there was some uncertainty about that construction and because employees' security of employment and entitlements were sensitive matters, the appropriate course was to make an ordinary 12 month award replicating so far as practicable the current enterprise agreement, with leave reserved and related provisions...

Jurisdiction
Australia
Judgment Date
31 January 2005
Procedural Posture
Industrial Relations Award and Dispute Proceedings Concerning the Proposed Sale of the Marrickville Site and Replacement of an Enterprise Agreement / Decision on Unilever's Application Under Clause 18(5)(iii), Apf's Application for an Interim Award, and the Unions' Application for a New Award
Outcome
Unilever's application in Matter No IRC2004/6510 was stood over; a new 12 month award was to be made in Matters Nos IRC2004/6518 and IRC2004/7263; APF's request for an interim award and the Unions' request for a three year award were not granted.
Legal Topics
['redundancy Entitlements' 'enterprise Agreements' 'interim Awards' 'term of Award' 'construction of Industrial Relations Act 1996 S 16' 'change in Ownership of Manufacturing Site']
['industrial Relations' 'employment Law' 'statutory Interpretation'] ['redundancy Entitlements' 'enterprise Agreements' 'interim Awards' 'term of Award' 'construction of Industrial Relations Act 1996 S 16' 'change in Ownership of Manufacturing Site']

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Procedural Posture

Industrial Relations Award and Dispute Proceedings Concerning the Proposed Sale of the Marrickville Site and Replacement of an Enterprise Agreement / Decision on Unilever's Application Under Clause 18(5)(iii), Apf's Application for an Interim Award, and the Unions' Application for a New Award

Legal Issues

  1. 1 ["Whether Unilever's application for an order pursuant to clause 18(5)(iii) of the Margarine Makers (State) Award should be determined after Unilever's declaratory relief was not granted." 'Whether an interim award made under Industrial Relations Act 1996 s 16(4) continues to have legal effect after the specified period until rescinded by the Commission under s 16(1).' 'Whether the award replacing the current enterprise agreement at the Marrickville site should be an interim award, a one year non-interim award, or a three year award.' 'Whether the relevant authorities should consider amending Industrial Relations Act 1996 s 16 to remove doubt about its application to interim awards.']

Ratio Decidendi

The preferable construction of Industrial Relations Act 1996 s 16 is that an interim award has a nominal term, being the term expressed in the award as commencing on its date of operation and ending at the end of its specified period, and that s 16(1) applies so the interim award continues to have legal effect after that term until rescinded by the Commission. Nevertheless, because there was some uncertainty about that construction and because employees' security of employment and entitlements were sensitive matters, the appropriate course was to make an ordinary 12 month award replicating so far as practicable the current enterprise agreement, with leave reserved and related provisions...

Court Disposition

Unilever's application in Matter No IRC2004/6510 was stood over; a new 12 month award was to be made in Matters Nos IRC2004/6518 and IRC2004/7263; APF's request for an interim award and the Unions' request for a three year award were not granted.

Orders

  • ["Unilever's application in Matter No IRC2004/6510 is stood over and may be relisted by any party on seven days' notice. If no application for relisting is made within eight weeks of today, the proceedings will be terminated." "A new award will be made in Matters Nos IRC2004/6518 and IRC2004/7263. The award will be...