Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Liquor, Hospitality Miscellaneous Union, Liquor & Hospitality Division, NSW Branch on behalf of its Member, Wayne Roberts v Woonona Bulli RSL Memorial Club Limited [2007] FCA 1460
INDUSTRIAL RELATIONS – alleged unlawful termination – whether employee terminated for proscribed reason within s 659(2)(g) – refusing to sign an AWA – application of s 664 – Held: employee dismissed as position became redundant – employer established defence under s 664(b) – application dismissed Workplace Relations Act 1956 (Cth) ss 643, 659, 663, 664, 665 R v Industrial Commission of South Australia; ex parte Adelaide Milk Supply Co-op Ltd (1977) 16 SASR 6 cited LIQUOR, HOSPITALITY MISCELLANEOUS UNION, LIQUOR & HOSPITALITY DIVISION, NSW BRANCH ON BEHALF OF ITS MEMBER, WAYNE ROBERTS v WOONONA BULLI RSL MEMORIAL CLUB LIMITED NSD 2447 OF 2006
BRANSON J
18 SEPTEMBER 2007
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 2447 OF 2006
BETWEEN: LIQUOR, HOSPITALITY MISCELLANEOUS UNION, LIQUOR & HOSPITALITY DIVISION, NSW BRANCH ON BEHALF OF ITS MEMBER, WAYNE ROBERTS
Applicant
AND: WOONONA BULLI RSL MEMORIAL CLUB LIMITED
Respondent
JUDGE: BRANSON J DATE OF ORDER: 18 SEPTEMBER 2007
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 NSD 2447 OF 2006
BETWEEN: LIQUOR, HOSPITALITY MISCELLANEOUS UNION, LIQUOR & HOSPITALITY DIVISION, NSW BRANCH ON BEHALF OF ITS MEMBER, WAYNE ROBERTS
Applicant
AND: WOONONA BULLI RSL MEMORIAL CLUB LIMITED
Respondent
JUDGE: BRANSON J
DATE: 18 SEPTEMBER 2007
PLACE: SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION 1 Wayne Roberts, who is a trained chef, commenced employment with the respondent ('the Club') on 8 July 2005 as a kitchen supervisor. His employment by the Club came to an end on 17 October 2006 in circumstances that are in dispute. 2 The applicant ('the Union') applied to the Australian Industrial Relations Commission ('the Commission') pursuant to s 643 of the Workplace Relations Act 1956 (Cth) ('the Act') on Mr Roberts' behalf for relief in respect of the termination of his employment on the grounds: (a) that the termination was harsh, unjust and unreasonable; and (b) of an alleged contravention of s 659 of the Act. 3 The Commission subsequently certified that all reasonable attempts to settle the matter by conciliation had been, or were likely to be, unsuccessful in respect of each of the above grounds. 4 The Union thereafter instituted this proceeding on behalf of Mr Roberts by filing an application for relief from unlawful termination (s 663(3) and (5) of the Act). The relief sought is that Mr Roberts be reinstated in his previous position as a Permanent Level 5 Supervisor and that he be compensated by the Club for the loss of wages suffered by him between termination and reinstatement. The only ground upon which it is contended that the termination of Mr Robert's employment was unlawful is that identified in s 659(2)(g) of the Act; namely, that his employment was terminated by his employer for the reason, or for reasons including the reason, that he refused to negotiate in connection with, make or sign an Australian Workplace Agreement ('AWA'). 5 For the reasons set out below I have concluded that the application should be dismissed.
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