Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613

FEDERAL COURT OF AUSTRALIA

Finance Sector Union of Australia v

Commonwealth Bank of Australia [2001] FCA 1613 INDUSTRIAL LAW – position redundancy – whether work still required to be performed – whether work encompasses both the duties attached to a position and the organisational context in which they are performed – whether redundancy situation can arise when the duties of an employee will still be undertaken for the ultimate benefit of the original employer but for the immediate benefit of another employer – whether "directly comparable position" could include a position outside the organisational structure of the employer – whether employer required to terminate employment in a redundancy situation where offer of redeployment not made. INDUSTRIAL LAW – indicia of employment – who is the employer where two putative employers - whether employee's consent necessary for the transfer of employment. Commonwealth Bank of Australia Officers' Award 1990 cl 42 Workplace Relations Act 1996 (Cth) Hawkins v Commonwealth Bank of Australia (1996) 66 IR 322 applied Hawkins v Commonwealth Bank of Australia (No 2) (1996) 70 IR 213 applied Pitcher v Langford (1991) 23 NSWLR 142 referred to Marrs Fabrics Pty Ltd & Nathan Wholesale Fabrics Pty Ltd v Whipps (1991) 33 AILR ¶167 referred to Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 referred to Romero v Auty (2001) 19 ACLC 206 referred to Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 referred to Textile Footwear and Clothing Union of Australia v Bellechic and others (unreported, Ryan J, Federal Court of Australia, 19 November 1998) referred to Termination, Change and Redundancy Case (1984) 8 IR 34 discussed Termination, Change and Redundancy Case 1984) 9 IR 115 discussed Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v United Milk Tasmania Ltd (2000) 48 AILR ¶4-315 (Print S7351) referred to Steppes Pty Ltd t/a The Beaufort Darwin v Australian Liquor, Hospitality and Miscellaneous Workers Union (1998) 86 IR 337 referred to Trustee Officers' Award Case (1983) 290 CAR 100 referred to Trustee Officers' Award Case (1983) 291 CAR 200 referred to In re Bank Officers (State) Board (1921) 20 AR(NSW) 303 referred to Re Government Cleaning Service (Privatisation) Award (No 2) (1994) 55 IR 199 followed Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council (2000) 101 IR 143 not followed Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 referred to Capper Pass Ltd v Lawton (1977) 1 QB 852 referred to Shields v E.Coomes (Holdings) Ltd (1978) ICR 1159 referred to The King v Foster; Ex parte Crown Crystal Glass Co Pty Ltd (1944) 69 CLR 299 referred to EPM Concrete Pty Ltd v Building and Construction Industry Long Service Leave Payments Corporation (1985) 23 IR 430 discussed FINANCE SECTOR UNION OF AUSTRALIA AND KENNETH MACEY V COMMONWEALTH BANK OF AUSTRALIA N262 OF 1999 MOORE J 16 NOVEMBER 2001 SYDNEY