Finance Sector Union of Australia v Commonwealth Bank of Australia [2003] FCA 518

Finance Sector Union of Australia v Commonwealth Bank of Australia [2003] FCA 518

The applicants' proposed broader separate question should be tried because it was likely to resolve all common issues in the representative proceeding, the applicants proposed to rely on limited evidence and the relevant facts appeared unlikely to be controversial, the hearing and costs were unlikely to be materially increased, and the Bank's narrower formulation risked leaving the controversy unresolved and making the litigation piecemeal. The Bank's asserted prejudice arising from its proposed Award variation did not justify casting the question in inappropriately narrow terms.

Jurisdiction
Australia
Judgment Date
27 May 2003
Procedural Posture
Representative Proceeding Concerning Alleged Breach of the Commonwealth Bank Officers Award 1990 by Failure to Pay Severance Payments / Determination of Competing Formulations for a Separate Question Under Order 29 Rule 2 of the Federal Court Rules
Outcome
The Court ordered that the separate question formulated by the applicants be tried separately and listed the matter for further directions.
Legal Topics
['separate Question' 'severance Payments' 'redundancy' 'retrenchment' 'construction of Industrial Award' 'outsourcing']
['industrial Law' 'civil Procedure' 'representative Proceedings'] ['separate Question' 'severance Payments' 'redundancy' 'retrenchment' 'construction of Industrial Award' 'outsourcing']

Case Brief

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Procedural Posture

Representative Proceeding Concerning Alleged Breach of the Commonwealth Bank Officers Award 1990 by Failure to Pay Severance Payments / Determination of Competing Formulations for a Separate Question Under Order 29 Rule 2 of the Federal Court Rules

Legal Issues

  1. 1 ['Whether any question should be tried separately under Order 29 Rule 2 of the Federal Court Rules.' 'Whether the separate question should be framed narrowly as whether the Bank was obliged to treat identified employees as being in a redundancy situation for the purposes of clause 42(d)(i) of the Commonwealth Bank of Australia Officers Award 1990.' 'Whether the separate question should be framed more broadly as whether, on a true construction of Clause 42 of the Commonwealth Bank of Australia Officers Award 1990, the identified employees are entitled to severance payments in accordance with sub-paragraph (g).' 'Whether the broader question would inappropriately require detailed employee-specific factual findings or prejudice the Bank in relation to its application before the Australian Industrial Relations Commission.']

Ratio Decidendi

The applicants' proposed broader separate question should be tried because it was likely to resolve all common issues in the representative proceeding, the applicants proposed to rely on limited evidence and the relevant facts appeared unlikely to be controversial, the hearing and costs were unlikely to be materially increased, and the Bank's narrower formulation risked leaving the controversy unresolved and making the litigation piecemeal. The Bank's asserted prejudice arising from its proposed Award variation did not justify casting the question in inappropriately narrow terms.

Court Disposition

The Court ordered that the separate question formulated by the applicants be tried separately and listed the matter for further directions.

Orders

  • ['Pursuant to Order 29 Rule 2, the following question be tried separately from any other question arising in the proceeding: Whether on a true construction of Clause 42 of the Commonwealth Bank of Australia Officers Award 1990, an award of the Australian Industrial Relations Commission, employees listed in annexure...