Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804

FEDERAL COURT OF AUSTRALIA

Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804

INDUSTRIAL LAW – dismissal from employment – whether dismissal in breach of s 298K and s 298L of the Workplace Relations Act 1996 (Cth) – whether employee dismissed because he was a union delegate – meaning of "delegate" - onus imposed by s 298V of Workplace Relations Act 1996 (Cth) - whether trial judge erred in not taking into account evidence called by the appellants in determining if the company discharged the onus WORDS & PHRASES – "delegate"

Workplace Relations Act 1996 (Cth) ss 298K, 298L, 298T, 298V, 347 Cuevas v Freeman Motors (1975) 8 ALR 321 at 325 cited Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568 at 576-577 and 588-589 cited General Motors-Holden's Pty Ltd v Bowling (1977) 51 ALJR 235 at 239 cited State Rail Authority v Earthline Constructions Pty Ltd (1999) 73 ALJR 306; 160 ALR 588, at [62] – [64] cited Reynolds Bowstead & Reynolds on Agency 16th ed. 1996 at 51‑55 JOHN ELLIOTT and AUSTRALIAN LIQUOR, HOSPITALITY & MISCELLANEOUS WORKERS' UNION v KODAK AUSTRALASIA PTY LIMITED ACN 004 057 621 V 746 OF 2001 LEE, MADGWICK and GYLES JJ PERTH (HEARD IN MELBOURNE) 20 DECEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 746 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: JOHN ELLIOTT

FIRST APPELLANT

Australian Liquor, Hospitality & Miscellaneous Workers' Union

SECOND APPELLANT

AND: KODAK AUSTRALASIA PTY LIMITED ACN 004 057 621

RESPONDENT

JUDGES: LEE, MADGWICK and GYLES JJ

DATE OF ORDER: 20 DECEMBER 2001

WHERE MADE: PERTH (HEARD IN MELBOURNE)

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The order made by Marshall J on 29 June 2001 be set aside and the matter remitted to his Honour for further determination. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.