Construction, Forestry, Mining & Energy Union v Mount Thorley Operations Pty Ltd [1997] FCA 1134

Construction, Forestry, Mining & Energy Union v Mount Thorley Operations Pty Ltd [1997] FCA 1134

Clause 24 of the 1990 Award requires that, absent agreement with the relevant union, the employer must apply 'the last to come the first to go' principle for identifying retrenched employees, solely according to length of service in respective work classes. Clause 37(b) of the Agreement is invalid as it does not...

Source-derived case information.

Parties
Applicant: Construction, Forestry, Mining and Energy Union; Respondent: Mount Thorley Operations Pty Ltd
Jurisdiction
Australia
Judgment Date
30 October 1997
Procedural Posture
Application for Interpretation of Industrial Instruments / Post Certification, Judgment Given
Outcome
Partially granted and partially dismissed
Legal Topics
Interpretation of Awards and Certified Agreements, Validity of Award Provisions, Redundancy and Retrenchment, Jurisdiction of the Federal Court, Statutory Construction
Industrial Law Interpretation of Awards and Certified Agreements Validity of Award Provisions Redundancy and Retrenchment Jurisdiction of the Federal Court Statutory Construction

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 13 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Construction, Forestry, Mining and Energy Union

Applicant

Mount Thorley Operations Pty Ltd

Respondent

Procedural Posture

Application for Interpretation of Industrial Instruments / Post Certification, Judgment Given

Legal Issues

  1. 1 Does the Federal Court have the power to interpret certified agreements certified under repealed industrial laws?
  2. 2 Is clause 37(b) of the Agreement a valid provision?
  3. 3 What is the meaning and effect of clause 24 of the 1990 Award concerning redundancy and retrenchment procedures?

Ratio Decidendi

Clause 24 of the 1990 Award requires that, absent agreement with the relevant union, the employer must apply 'the last to come the first to go' principle for identifying retrenched employees, solely according to length of service in respective work classes. Clause 37(b) of the Agreement is invalid as it does not pertain to the employer-employee relationship and could not have been certified under s 170MC. The Federal Court has jurisdiction under s 413A to interpret certified agreements even if certified under repealed laws, due to transitional legislative provisions.

Court Disposition

Partially granted and partially dismissed

Orders

  • Declared that clause 24 of the Coal Mining Industry (Production and Engineering) Interim Consent Award September 1990 means, in absence of agreement with union, principle 'last to come first to go' applies for retrenchment according to length of service at mine.
  • Order declared to take effect at 12 noon, Friday 31 October 1997.