Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99

FEDERAL COURT OF AUSTRALIA

Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99 Appeal from: Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 3) [2015] FCA 1278

File number: NSD 1431 of 2015

Judges: JESSUP, RANGIAH AND WHITE JJ

Date of judgment: 5 August 2016

Catchwords: INDUSTRIAL LAW – Redundancy – Agreement clause requiring recourse to "redeployment and voluntary redundancy" – Whether employer obliged to offer redundancy separation to employees whose positions continued to exist – Agreement clause requiring investigation of "all avenues to avoid forced redundancies, including the reduction of contractors" – Whether confined to contractors engaged on full-time, permanent, basis – Whether employer had undertaken investigation. INDUSTRIAL LAW – Obligation to consult where introduction of "change" being considered – Whether change was "major" – Whether introduction of change being "considered" – Potential impact of change on dayworkers – Whether employed on day shift – Whether "a change to the numbers of employees per shift." INDUSTRIAL LAW – Adverse action – Dismissed of employee – Whether done because of employee's position as officer of trade union or his having engaged in industrial activity – Reasons of decision-maker – Onus of proof – Credibility of witness. EVIDENCE – Credibility of witnesses – Witnesses' evidence rejected for reasons which included their failure to refer, in their affidavits, to documents and facts which were unhelpful to their case – Whether they testified that their affidavits were comprehensive – Whether they were given sufficient warning that their omissions might result in the rejection of their evidence. INDUSTRIAL LAW – Remedies – Reinstatement – Whether available where position previously occupied no longer existed.