Wesfarmers Premier Coal Ltd ABN 21 008 672 599 v The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (No. 2) [2004] FCA 1737

FEDERAL COURT OF AUSTRALIA

Wesfarmers Premier Coal Limited v The Automotive Food Metals

Engineering, Printing and Kindred Industries Union (No 2) [2004] FCA 1737 INDUSTRIAL LAW – industrial action – whether protected action – to support or advance claims in respect of a proposed certified agreement – meaning of 'proposed agreement' – how proposed agreement identified – whether proposed agreement deals only with matters pertaining to employer-employee relationship – test for whether matter pertains to employer-employee relationship – provision limiting application of proposed agreement – provision for subsequent agreement in respect of possible new plant – paid leave for attendance at union meetings and training courses – - payment for attendance by off duty employees - utilisation of independent contractors – right of entry of union representatives – redundancy entitlements – leave for local government representation – provisions relating to payment for off duty employees and utilisation of independent contractors not pertaining to employment relationship - proposed agreement not certifiable – industrial action not protected – whether any penalty appropriate. Workplace Relations Act 1996 (Cth) s 170LI, s 170MI, s 170MJ, s 170ML, s 170MO, s 170MP, s 170MT, s 170NC Industrial Relations Act 1979 (WA) Coal Industry Tribunal of Western Australia Act 1992 (WA) Workplace Relations Amendment (Agreement Validation) Act 2004 s 170NHBA, s 170NHC Conciliation and Arbitration Act 1904 (Cth) Electrolux Home Products Pty Ltd v Australian Workers' Union and Others (2004) 209 ALR 116 applied Electrolux Home Products Pty Ltd v Australian Workers' Union [2001] FCA 1600 cited Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 cited R v Portus; Ex parte ANZ Banking Group Ltd (1972) 127 CLR 353 cited R v Kelly; Ex parte Victoria (1950) 81 CLR 64 cited AMIEU v G & K O'Connor Pty Ltd (1999) IR 355 cited R v Commonwealth Court of Conciliation and Arbitration and the Merchant Service Guild of Australia; Ex parte Allen Taylor & Company Ltd (1912) 15 CLR 586 cited R v Industrial Commission (SA); Ex parte Fire Brigade Board (1977) 15 SASR 546 cited Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Australia (1987) 19 IR 112 cited R v The Judges of the Commonwealth Industrial Court; Ex parte Cocks (1968) 121 CLR 313 cited R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470 cited Construction, Forestry, Mining & Energy Union v Mount Thorley Operations Pty Ltd (1997) 79 FCR 97 cited Pearce and Geddes, 'Statutory Interpretation in Australia', 5th Edition (Butterworths 2001) WESFARMERS PREMIER COAL LIMITED v THE AUTOMOTIVE FOOD METALS ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION W230 OF 2004 FRENCH J 23 DECEMBER 2004 PERTH