Construction, Forestry, Mining & Energy Union v Novacoal Australia Pty Ltd [2000] FCA 331

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining & Energy Union v Novacoal

Australia Pty Ltd [2000] FCA 331 INDUSTRIAL LAW – Question of continuing operation of an agreement ratified by the Coal Industry Tribunal pursuant to an award provision – Agreement formally extended to 10 June 1995 – Whether agreement had effect under s36(1) or (2) of Coal Industry Act immediately before abolition of Tribunal on 1 July 1995 – Whether Tribunal's ratification order constituted an "award or order" made by the Tribunal – Whether the agreement was "filed" in a Registry of the Australian Industrial Relations Commission. Industrial Relations Legislation Amendment (No.2) Act 1994, Sch.1 item 15 Industrial Relations Act 1988, ss147 and 148 Coal Industry Act 1946, ss 30, 32, 34 and 36 CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v NOVACOAL AUSTRALIA PTY LIMITED N1268 of 1999 WILCOX J SYDNEY 22 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1268 of 1999

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

AND: NOVACOAL AUSTRALIA PTY LIMITED

Respondent

JUDGE: WILCOX J

DATE OF ORDER: 22 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1268 of 1999

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

AND: NOVACOAL AUSTRALIA PTY LIMITED

Respondent

JUDGE: WILCOX J

DATE: 22 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 WILCOX J: The issue in this case is whether an instrument called "Howick Award Mark 1, 1993" remains in force, so as to regulate the industrial conditions applicable to the Howick Open Cut Mine, the Howick Coal Preparation Plant and the Newdell Coal Preparation Plant, all of which are operated by Novacoal Australia Pty Limited ("Novacoal"), the respondent. 2 The applicant, Construction, Forestry, Mining and Energy Union ("CFMEU"), an industrial organisation representing employees, asserts the instrument does remain in force and seeks a declaration in the following form: "A declaration that the Howick Award Mark 1, 1993 has effect as, and is taken to be, an award made by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth)." Novacoal says the instrument is no longer in force and resists the application for a declaration. 3 The issue turns on legal technicalities, not on the question whether the conditions prescribed by the instrument are, or ever have been, appropriate or inappropriate.