Leo & Green Pty Ltd v CFMEU [2000] FCA 830

Leo & Green Pty Ltd v CFMEU [2000] FCA 830

On the proper construction of clause 26 of the Award, a worker is not retrenched when notice of retrenchment is received; the worker is retrenched at the expiry of the notice period. The entitlement to severance pay and retrenchment pay is directed to the termination of employment and is calculated by reference to completed service ending at that time. Because the Magistrate treated the entitlement as arising upon the giving of notice, the appeal was allowed and the orders concerning Christopher John Birchley were set aside.

Jurisdiction
Australia
Judgment Date
20 June 2000
Procedural Posture
Industrial Law Appeal Concerning Entitlement to Severance Pay and Retrenchment Pay Under an Award / Appeal From Part of the Judgment and Orders of Industrial Magistrate Mac Callum SM Given on 1 February 1999
Outcome
Appeal allowed.
Legal Topics
['award Construction' 'severance Pay' 'retrenchment Pay' 'notice of Retrenchment' 'coal Mining Industry Employment']
['industrial Law' 'employment Law'] ['award Construction' 'severance Pay' 'retrenchment Pay' 'notice of Retrenchment' 'coal Mining Industry Employment']

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Procedural Posture

Industrial Law Appeal Concerning Entitlement to Severance Pay and Retrenchment Pay Under an Award / Appeal From Part of the Judgment and Orders of Industrial Magistrate Mac Callum SM Given on 1 February 1999

Legal Issues

  1. 1 ['Whether, under clause 26 of the Coal Mining Industry (Production and Engineering) Interim Consent Award 1990, entitlement to severance pay and retrenchment pay arises when notice of retrenchment is communicated or when the notice period expires.' 'Whether an employee who leaves before the termination date specified in a notice of retrenchment is entitled to severance pay and retrenchment pay under clause 26.' 'Whether the history of an award clause is relevant to its proper construction.']

Ratio Decidendi

On the proper construction of clause 26 of the Award, a worker is not retrenched when notice of retrenchment is received; the worker is retrenched at the expiry of the notice period. The entitlement to severance pay and retrenchment pay is directed to the termination of employment and is calculated by reference to completed service ending at that time. Because the Magistrate treated the entitlement as arising upon the giving of notice, the appeal was allowed and the orders concerning Christopher John Birchley were set aside.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The orders of Industrial Magistrate MacCallum SM of 1 February 1999 concerning Christopher John Birchley be set aside.']