Hanlon v Refined Sugar Service Pty Ltd [2002] FCA 1395

FEDERAL COURT OF AUSTRALIA

Hanlon v Refined Sugar Service Pty Ltd [2002] FCA 1395 WORKPLACE RELATIONS – agreement made between employer and employees' association granting extra redundancy benefits to employees should termination occur within five years – agreement uncertified and probably unenforceable – certain employees later resigned to take up positions with a new employer - certified agreement concluded between new employer and employees which purported to, for the life of the agreement, preserve the terms and conditions of employment that existed at the time of the employee's termination by the previous employer – whether the earlier agreement imported – whether the time limit within the earlier agreement continued to apply Workplace Relations Act 1996 (Cth) ss 170LT, 170LX, 177A, 178, 179, 422. City of Wanneroo v Homes (1989) 30 IR 362, followed. Ryan v Textile Clothing and Footwear Union of Australia [1996] 2 VR 235, considered.

JON HANLON v REFINED SUGAR SERVICES PTY LIMITED

N553 OF 2002

EMMETT J

4 NOVEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY 553 OF 2002

BETWEEN: JON HANLON

APPLICANT

AND: REFINED SUGAR SERVICES PTY LIMITED

RESPONDENT

JUDGE: EMMETT

DATE OF ORDER: 4 NOVEMBER 2002

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 553 OF 2002

BETWEEN: JON HANLON

APPLICANT

AND: REFINED SUGAR SERVICES PTY LIMITED

RESPONDENT

JUDGE: EMMETT

DATE: 4 NOVEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is the Secretary of the CSR Officers' Association ("the Association"). The Association is an organisation registered under the Workplace Relations Act 1996 (Cth) ("the Act"). On 22 August 2001, the applicant commenced a proceeding, by information laid under s 178 of the Act in the Chief Industrial Magistrates Court, against the respondent, Refined Sugar Services Pty Ltd ("RSS"). In the proceeding, the applicant sought the imposition of a penalty in respect of alleged breach by RSS of an agreement certified under Division 4 of Part VIB of the Act ("the Certified Agreement"). On 22 May 2002, Mr G.A. Miller, Chief Industrial Magistrate ("the Magistrate"), dismissed the information. The applicant now appeals from that dismissal to the Federal Court of Australia pursuant to s 422 of the Act. 2 Under s 170LT(1) of the Act, if an application is made to the Australian Industrial Relations Commission ("the Commission") to certify an agreement, the Commission must certify the agreement if it is satisfied that the requirements of s 170LT are met. Under s 170LX, a certified agreement comes into operation when it is certified and remains in operation at all times afterwards. However, it ceases to be in operation if its nominal expiry date has passed and it is replaced by another certified agreement. Section 170LX also provides for other circumstances in which a certified agreement ceases to be in operation or does not otherwise operate. 3 Section 178(1) of the Act provides that, where an organisation or person bound by a certified agreement breaches a term of the agreement, a penalty may be imposed by a court of competent jurisdiction. Under s 177A of the Act, the Chief Industrial Magistrates Court is a court of competent jurisdiction. Under s 422 of the Act, an appeal lies to the Federal Court of Australia from a judgment of a court of the State in a matter arising under the Act. It is not necessary to obtain the leave of the Federal Court or the court appealed from in relation to such an appeal. This appeal has been brought pursuant to notice of appeal filed on 12 June 2002. The facts giving rise to the issue before the Court are not in dispute. 4 In late 1995, CSR Limited ("CSR") and the Association executed an instrument ("the Redundancy Agreement") that bears the following title: " REFINED SUGARS GROUP LIMITED & CSR OFFICERS' ASSOCIATION REFINING OPERATIONS PERFORMANCE BASED REDUNDANCY AND RETRENCHMENT AGREEMENT" While the title refers to "Refined Sugars Group Limited" it is common ground that the name "Refined Sugars Group" is a business name under which CSR carries on business. 5 The Redundancy Agreement, in terms, was expressed to be between CSR and the Association. It recited the background to it as follows: · CSR is restructuring its operations; · Redundancies will occur amongst staff working in CSR; · A number of CSR sites have wage earner redundancy agreements, which give redundancy payments more favourable than those provided to CSR staff employees under the Redundancy and Retrenchment Agreement of January 1993 between CSR and the Association ("the Principal Agreement"); · The Association sought negotiations with CSR under Clause 6.2 of the Principal Agreement for higher additional benefits for staff on refinery sites. 6 The Principal Agreement is expressed to be binding on the Association, its members and CSR. Its provisions were to be in addition to the provisions of the CSR Staff (Consolidated) Award 1992. Clause 6.2 relevantly provided that where CSR staff employees were to be retrenched at a particular site and that site had a site redundancy agreement for non-staff employees, and such agreement gave higher level of overall benefits than the Principal Agreement, then the Association could negotiate with CSR for additional benefits. The Redundancy Agreement states that the need for it arose as a result of Clause 6.2 of the Principal Agreement. 7 The Redundancy Agreement provided that it was to apply only to CSR staff working at specified locations. The Redundancy Agreement relevantly provided as follows: "5. Redundancies Covered. The Agreement applies to all bona fide redundancies, as defined in Clause 2.1 of the Principal Agreement, which occur during the term of the Agreement. ……………………… 6. Operative Date. The Agreement will apply to all redundancies occurring on or after 1st September 1995. ……………………… 8. Redundancy Package. The Redundancy Package to apply is: