Employment National Ltd v CPSU [2000] FCA 452

FEDERAL COURT OF AUSTRALIA

Employment National Ltd v CPSU [2000] FCA 452

INDUSTRIAL LAW – awards and certified agreement – privatisation of the services of a Commonwealth government department to which binding awards and certified agreement relate – whether the services of the department constituted "a business" within the meaning of section 149(1)(d) of the Workplace Relations Act 1996 – whether certain corporations became the "successors, assignees or transmittees" of the business – substantial identity between old and new activities – whether binding effect of awards and agreement limited to employment under the Public Service Act 1922 – whether the awards and agreement were in terms incapable of application outside the Australian Public Service – whether the making of an employer-specific award by the Australian Industrial Relations Commission constitutes an order ousting the effect of s149(1)(d) – meaning of "new employer" under section 170MB CONSTITUTIONAL LAW – whether section 149(1)(d) of the Workplace Relations Act 1996, in operating to make awards binding upon an employer not party to the original dispute giving rise to those awards, is consistent with placita (xxxv) and (xxxix) in section 51 of the Constitution WORDS AND PHRASES – "business" – "part of the business" "subject to any order of the Commission" – "substantial identity"

Workplace Relations Act 1996 ss 149(1)(d), 149(1A), 170MB(1) and 170LB(1) Re-establishment and Employment Act 1945 ss 47 and 48 Public Service Act 1922 s 7(1) Employment Services Act 1994 ss 3(1), 8, 18, 37(1), 68 Commonwealth Services Delivery Agency Act 1997 Acts Interpretation Act 1901 s 15AB Council of the European Communities Directive 77/187 of 1977 Articles 2 and 3(1) North Western Health Care Network v Health Services Union of Australia [1999] 164 ALR 147 followed The Queen v Cohen, ex parte Motor Accident Insurance Board (1979) 141 CLR 577 applied Re Australian Industrial Relations Commission; ex parte Australian Transport Officers Federation (1990) 171 CLR 216 applied R v Coldham; ex parte Australian Social Welfare Union (1983) 153 CLR 297 applied Re Australian Education Union; ex parte Victoria (1994-5) 188 CLR 188 applied Melbourne Corporation v Commonwealth (1947) 74 CLR 31 applied Ex parte Professional Engineers' Association (1959) 107 CLR 208 applied Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 applied State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282 distinguished Health Services Union of Australia v North Eastern Health Care Network & Western Health Care Network [1997] 79 FCR 43 applied Australian Federation of Air Pilots v Skywest Airlines Pty Ltd (Industrial Relations Court of Australia, Marshall J, unreported, 31 October 1995) referred to Meat & Allied Trades Federation of Australia v Australasian Meat Industry Employees Union (1995) 58 IR 90 referred to Crosilla v Challenge Property Services (1982) 2 IR 448 distinguished George Hudson v Australian Timber Workers' Union (1922-3) 32 CLR 413 followed Daily News Ltd v Australian Journalists Association (1920) 27 CLR 532 referred to Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission & Ors [1999] 164 ALR 73 followed ACTEW Corporation Ltd v Media Entertainment and Arts Alliance (Industrial Relations Court of Australia, Moore J, unreported, 7 August 1997) referred to Spijkers v Gebroeders Benedik Abbattoir CV and Anor [1986] ECR 1119 referred to Attorney General NSW v Brewery Employees Union of NSW (1908) 6 CLR 469 applied