CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and HORNETT v BORG MANUFACTURING PTY LTD [1997] IRCA 14

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and HORNETT v BORG MANUFACTURING PTY LTD [1997] IRCA 14

Regulation 30B did not apply because there was no determination in advance that Mr Hornett's employment was probationary, either by express or implied agreement, nor by operation of the enterprise flexibility agreement, which came into force after employment commenced.

Jurisdiction
Australia
Judgment Date
06 February 1997
Procedural Posture
Application for Review of Judicial Registrar's Decision Under S 170 EA Workplace Relations Act 1996 / Judicial Review; Reasons for Judgment and Orders
Outcome
Order of Judicial Registrar dismissing the application under s 170EA is set aside; application remitted for hearing and determination.
Legal Topics
['termination of Employment' 'probationary Employment' 'enterprise Flexibility Agreement' 'application of Exclusionary Regulations to Employment' 'power to Determine Date of Operation of Agreements']
['industrial Law' 'employment Law'] ['termination of Employment' 'probationary Employment' 'enterprise Flexibility Agreement' 'application of Exclusionary Regulations to Employment' 'power to Determine Date of Operation of Agreements']

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Procedural Posture

Application for Review of Judicial Registrar's Decision Under S 170 EA Workplace Relations Act 1996 / Judicial Review; Reasons for Judgment and Orders

Legal Issues

  1. 1 ['Whether Mr Hornett was a probationary employee with a period of probation determined in advance' 'Whether the employment contract was governed by an enterprise flexibility agreement made after employment commenced' "Whether regulation 30B excluded the applicant's protections under Division 3 of Part VIA" 'Whether the Australian Industrial Relations Commission had power to specify an earlier date of commencement for the agreement']

Ratio Decidendi

Regulation 30B did not apply because there was no determination in advance that Mr Hornett's employment was probationary, either by express or implied agreement, nor by operation of the enterprise flexibility agreement, which came into force after employment commenced.

Court Disposition

Order of Judicial Registrar dismissing the application under s 170EA is set aside; application remitted for hearing and determination.

Orders

  • ['The order of the Judicial Registrar of 19 September 1996 dismissing the application under s 170EA is set aside.' 'The application under s 170EA is remitted to a Judicial Registrar for hearing and determination.']