Australian Municipal, Administrative, Clerical & Services Union v Greater Dandenong City Council [2000] FCA 1231

FEDERAL COURT OF AUSTRALIA

Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council [2000] FCA 1231 INDUSTRIAL LAW – Workplace Relations Act 1996 (Cth), ss 298K(1), 298L(1)(h) - Council home care employees outsourced – Council engaged in prohibited conduct – Council called for tenders for home care services pursuant to Victorian competition legislation – Council employees formed in-house bid team –employees declined to agree to reduce entitlements under applicable industrial instruments – in-house bid tendered at significantly higher prices than outside bidder subject to lower award rates – price differential principally based upon different rates under respective awards – Council's decision to accept external bid based upon award entitlements – Council workers dismissed – reverse onus – council required to demonstrate that award entitlements played no part in motivation for dismissal – discussion of necessity to call majority of corporate decision-makers to ascertain corporate mind – prohibition against conduct engaged in because of level of entitlement, not mere fact of entitlement – importance of prohibition to integrity of award system – Act does not prohibit outsourcing per se CONSTITUTIONAL LAW – Re AEU – whether application of Act would infringe State's capacity to function – whether Council emanation of State for purpose of constitutional doctrine – appropriate test to determine whether a corporation is to be treated as the State – Council ultimately accountable to electorate not State – State's immunity as to dismissals on redundancy grounds does not extend to protect prohibited conduct – Council workers not in truth "redundant" – meaning of redundancy – fact of redundancy to be determined by Court - State description thereof not conclusive WORDS & PHRASES – "state", "redundancy" Workplace Relations Act 1996 (Cth), ss 298K(1), 298L(1)(h), 298V Local Government Act 1989 (Vic), ss 6, 208A, 208C(1)(c) Competition Policy Reform Act 1995