CSR Viridian Limited (formerly Pilkington Australia Limited) v Claveria [2008] FCAFC 177

FEDERAL COURT OF AUSTRALIA

CSR Viridian Limited (formerly Pilkington Australia Limited) v Claveria [2008] FCAFC 177

INDUSTRIAL LAW – Termination of employment – Employment terminated because employee had complained to union of over-zealous supervision by manager – Whether complaint amounted to "recourse" to union – Whether union was a "competent administrative authority". INDUSTRIAL LAW – Termination of employment – Statutory proscription of termination for certain reasons – Reasons derived from terms of international convention – Adoption of terms in domestic legislation – Construction of convention and statute – Whether broad or specific meaning to be given to terms of convention.

Workplace Relations Act 1996 (Cth), ss 659(2)(e), 665(1), Pt 15 Occupational Health and Safety Act 2004 (Vic), s 21, Pt 8 Convention Concerning Termination of Employment at the Initiative of the Employer Claveria v Pilkington Australia Limited (No 2) [2007] FCA 1917Claveria v Pilkington Australia Ltd [2007] FCA 1692 Commissioner of Taxation v Bank of Western Australia Ltd (1995) 61 FCR 407 Zhang v The Royal Australian Chemical Institute Inc (2005) 144 FCR 347

CSR VIRIDIAN LIMITED (FORMERLY PILKINGTON AUSTRALIA LIMITED) (ACN 006 904 052) v VICTOR CLAVERIA

VID 1162 of 2007

GRAY, GOLDBERG AND JESSUP JJ

30 october 2008

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1162 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: CSR VIRIDIAN LIMITED (FORMERLY PILKINGTON AUSTRALIA LIMITED) (ACN 006 904 052)

Appellant

AND: VICTOR CLAVERIA

Respondent

JUDGES: GRAY, GOLDBERG AND JESSUP JJ DATE OF ORDER: 30 october 2008

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. Paragraphs 4, 5 and 6 of the orders made by the Court on 19 November 2007 be set aside. 3. The orders made by the Court on 6 December 2007 be set aside. 4. The proceeding at first instance – VID 216 of 2007 - be dismissed. 5. Notwithstanding the previous order, (a) the appellant have leave to apply, within 21 days, for the making of any order or orders consequential upon the setting aside of orders 2(b) and 2(c) made on 6 December 2007; (b) if any such application is made, the proceeding be remitted to the trial Judge for the purposes of, and to the extent necessary for, the hearing and determination thereof. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.