Transport Workers' Union of New South Wales and Post Logistics Australasia Pty Ltd [2010] NSWIRComm 177

Transport Workers' Union of New South Wales and Post Logistics Australasia Pty Ltd [2010] NSWIRComm 177

The Commissioner erred by reducing severance payments without first determining whether acceptable alternative work, as required by cl 6(iii) of the Determination, had been found for each carrier, and by applying a principle not supported by the Determination that arranging suitable alternative work necessarily released the employer from severance payment obligations. These errors amounted to fundamental errors of law and principle, justifying grant of leave to appeal, upholding the appeal, and remitting the matter for redetermination.

Jurisdiction
Australia
Judgment Date
09 December 2010
Procedural Posture
Industrial Appeal and Cross Appeal / Full Bench Determination on Appeal and Cross Appeal From Commissioner's Decision
Outcome
Appeal upheld, cross-appeal refused, matter remitted for redetermination
Legal Topics
['severance Pay' 'contract Determination' 'redundancy' 'alternative Work' "commission's Discretion"]
['industrial Law'] ['severance Pay' 'contract Determination' 'redundancy' 'alternative Work' "commission's Discretion"]

Case Brief

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Procedural Posture

Industrial Appeal and Cross Appeal / Full Bench Determination on Appeal and Cross Appeal From Commissioner's Decision

Legal Issues

  1. 1 ['Whether Commission can reduce severance pay where acceptable alternative work is found' 'Whether it was an error to reduce severance pay without finding of acceptable alternative work' 'Interpretation of clause 6(iii) of the Transport Industry - Redundancy (State) Contract Determination']

Ratio Decidendi

The Commissioner erred by reducing severance payments without first determining whether acceptable alternative work, as required by cl 6(iii) of the Determination, had been found for each carrier, and by applying a principle not supported by the Determination that arranging suitable alternative work necessarily released the employer from severance payment obligations. These errors amounted to fundamental errors of law and principle, justifying grant of leave to appeal, upholding the appeal, and remitting the matter for redetermination.

Court Disposition

Appeal upheld, cross-appeal refused, matter remitted for redetermination

Orders

  • ['Leave to appeal granted' 'The appeal is upheld' 'The orders of Connor C of 26 May 2010 are quashed and set aside' 'Matter is remitted to a Member of the Commission to be determined in accordance with this decision' 'Leave to cross appeal refused in Matter No IRC 693 of 2010']