Construction, Forestry, Mining and Energy Union v Amcor Limited [2002] FCA 610

Construction, Forestry, Mining and Energy Union v Amcor Limited [2002] FCA 610

On the proper construction of cl 55, the relevant position was a position maintained by Amcor, and redundancy was to be assessed at the point Amcor dismissed the employees because it no longer required their work to be performed by it. The fact that Paper Australia offered and provided employment in the same work on the same terms did not prevent the employees' positions with Amcor from becoming redundant and the employees being retrenched. The Court would not fill any oversight or gap in the certified agreement because it could only surmise what the parties would have done, and Amcor's election argument failed because the employees did not have alternative and inconsistent rights.

Jurisdiction
Australia
Judgment Date
13 May 2002
Procedural Posture
Proceeding Seeking Penalties and Other Relief for Alleged Breach of Cl 55 of a Certified Agreement / Reasons for Judgment After Hearing; Parties to Be Heard on Orders
Outcome
Amcor's construction and election arguments were rejected; parties were to be heard on the orders to be made.
Legal Topics
['certified Agreement Construction' 'redundancy' 'retrenchment' 'severance Payments' 'sale or Transfer of Business' 'election']
['industrial Law' 'workplace Relations'] ['certified Agreement Construction' 'redundancy' 'retrenchment' 'severance Payments' 'sale or Transfer of Business' 'election']

Case Brief

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Procedural Posture

Proceeding Seeking Penalties and Other Relief for Alleged Breach of Cl 55 of a Certified Agreement / Reasons for Judgment After Hearing; Parties to Be Heard on Orders

Legal Issues

  1. 1 ['Whether employees whose employment with Amcor was terminated and who were offered employment by Paper Australia on the same terms and conditions had their positions made redundant within the meaning of cl 55 of the certified agreement.' 'Whether the continuation of the same work with a new employer prevented redundancy under cl 55.' 'Whether the Court could fill an alleged gap in the certified agreement to avoid redundancy payments in the circumstances.' 'Whether employees had elected to allow Paper Australia to assume redundancy obligations so as to preclude claims against Amcor.']

Ratio Decidendi

On the proper construction of cl 55, the relevant position was a position maintained by Amcor, and redundancy was to be assessed at the point Amcor dismissed the employees because it no longer required their work to be performed by it. The fact that Paper Australia offered and provided employment in the same work on the same terms did not prevent the employees' positions with Amcor from becoming redundant and the employees being retrenched. The Court would not fill any oversight or gap in the certified agreement because it could only surmise what the parties would have done, and Amcor's election argument failed because the employees did not have alternative and inconsistent rights.

Court Disposition

Amcor's construction and election arguments were rejected; parties were to be heard on the orders to be made.

Orders

  • ['I will hear the parties on the orders that should be made.']