Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 3) [2015] FCA 1278

Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 3) [2015] FCA 1278

Because the substantive reasons found breaches of the Agreement and contraventions of the Fair Work Act 2009 (Cth) and identified reinstatement of Mr Giddings and Mr Rosewarn as the appropriate remedy, and because the respondents provided no submissions identifying practical difficulties with the applicants' proposed reinstatement orders, the Court made the attached orders reinstating the Second and Third Applicants, treating specified parts of termination payments as back pay compensation, requiring repayment of balances, and programming further relief.

Jurisdiction
Australia
Judgment Date
16 November 2015
Procedural Posture
Fair Work Division Proceeding Concerning Alleged Breaches of an Industrial Agreement and Adverse Action Under the Fair Work Act 2009 (cth) / Reasons for Orders Giving Effect to Substantive Reasons for Judgment After Hearing on Draft Orders and Reinstatement
Outcome
Orders made giving effect to the substantive reasons, including reinstatement of the Second and Third Applicants and directions for further relief to be heard later.
Legal Topics
['reinstatement' 'compulsory Redundancy' 'adverse Action' 'industrial Agreement Consultation Obligations' 'draft Orders Giving Effect to Reasons for Judgment']
['employment and Industrial Law' 'practice and Procedure'] ['reinstatement' 'compulsory Redundancy' 'adverse Action' 'industrial Agreement Consultation Obligations' 'draft Orders Giving Effect to Reasons for Judgment']

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Procedural Posture

Fair Work Division Proceeding Concerning Alleged Breaches of an Industrial Agreement and Adverse Action Under the Fair Work Act 2009 (cth) / Reasons for Orders Giving Effect to Substantive Reasons for Judgment After Hearing on Draft Orders and Reinstatement

Legal Issues

  1. 1 ['Whether orders should be made reinstating Mr Giddings and Mr Rosewarn to employment with PKCT from the date of termination.' 'Whether any practical difficulties associated with reinstatement required modification of the proposed orders.' 'Whether parts of termination payments should be treated as compensation for back pay and balances repaid pending further relief.' 'Whether PKCT breached cl. 7 and cl. 13.5 of the Agreement and contravened the Fair Work Act 2009 (Cth) by adverse action, as found in the substantive reasons.']

Ratio Decidendi

Because the substantive reasons found breaches of the Agreement and contraventions of the Fair Work Act 2009 (Cth) and identified reinstatement of Mr Giddings and Mr Rosewarn as the appropriate remedy, and because the respondents provided no submissions identifying practical difficulties with the applicants' proposed reinstatement orders, the Court made the attached orders reinstating the Second and Third Applicants, treating specified parts of termination payments as back pay compensation, requiring repayment of balances, and programming further relief.

Court Disposition

Orders made giving effect to the substantive reasons, including reinstatement of the Second and Third Applicants and directions for further relief to be heard later.

Orders

  • ['The Second Applicant be reinstated to his employment with the First Respondent with effect from 11 December 2014.' 'The amount of $119,651.57 (gross) of the termination payments paid by the First Respondent to the Second Applicant on about 11 December 2014, be treated as compensation in respect of back pay for the...