FEDERAL COURT OF AUSTRALIA Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 3) [2015] FCA 1278 Citation: Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 3) [2015] FCA 1278 Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, ADAM JOHN GIDDINGS, JASON ROSEWARN and JENNIFER ARBER v PORT KEMBLA COAL TERMINAL LTD and PETER GREEN File number: NSD 1360 of 2014 Judge: MURPHY J Date of judgment: 18 November 2015 Catchwords: PRACTICE & PROCEDURE – Direction to provide draft orders to give effect to reasons for judgment - Refusal to provide minutes of draft orders giving effect to reasons for judgment Legislation: Fair Work Act 2009 (Cth) Date of hearing: 11 November 2015 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 17 Counsel for the Applicants: Ms L Doust Solicitor for the Applicants: Slater & Gordon Counsel for the Respondents: Mr S E J Prince Solicitor for the Respondents: Ashurst Australia IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 1360 of 2014 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Applicant ADAM JOHN GIDDINGS Second Applicant JASON ROSEWARN Third Applicant JENNIFER ARBER Fourth Applicant AND: PORT KEMBLA COAL TERMINAL LTD First Respondent PETER GREEN Second Respondent JUDGE: MURPHY J DATE OF ORDER: 16 NOVEMBER 2015 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The Second Applicant be reinstated to his employment with the First Respondent with effect from 11 December 2014. 2. The amount of $119,651.57 (gross) of the termination payments paid by the First Respondent to the Second Applicant on about 11 December 2014, be treated as compensation in respect of back pay for the period between 11 December 2014 and 16 November 2015. 3. The Third Applicant be reinstated to his employment with the First Respondent with effect from 11 December 2014. 4. The amount of $62,437.32 (gross) of the termination payments paid by the First Respondent to the Third Applicant on about 11 December 2014, be treated as compensation in respect of back pay for the period between 11 December 2014 and 16 November 2015. 5. Orders 1 and 3 are to take effect from 17 November 2015. 6. The balance of the termination payments paid to the Second Applicant by the First Respondent, being an amount of $189,044.72, be repaid to the First Respondent within 28 days of these orders being made. 7. The balance of the termination payments paid to the Third Applicant by the First Respondent, being an amount of $152,274.95, be repaid to the First Respondent within 28 days of these orders being made. 8. Any further claims for relief, including the question of any further compensation to be paid to the Second and Third Applicants, any additional compensation in respect of back pay, and the reconciliation of tax obligations arising from Orders 2 and 4, be listed for hearing on 26 April 2016 at 10.15 am on an estimate of two days. 9. On or before 27 November 2015 the Applicants to file and serve: (a) a minute of orders reflecting the further relief or other others sought by the Applicants; (b) any affidavit upon which the Applicants propose to rely in support of those claims for relief or other orders. 10. On or before 18 December 2015 the Respondents to file and serve any affidavit upon which they propose to rely in respect of the claims for further relief or other orders. 11. The matter be remitted to a Registrar of this Court for mediation on 24 February 2016. 12. By 4.00 pm on 15 April 2016 the Applicants to file and serve: (a) an outline of submissions; and (b) a list of authorities. 13. By 4.00 pm on 20 April 2016 the Respondents to file and serve: (a) an outline of submissions; and (b) a list of authorities. 14. Liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 1360 of 2014 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Applicant ADAM JOHN GIDDINGS Second Applicant JASON ROSEWARN Third Applicant JENNIFER ARBER Fourth Applicant AND: PORT KEMBLA COAL TERMINAL LTD First Respondent PETER GREEN Second Respondent JUDGE: MURPHY J DATE: 18 NOVEMBER 2015 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 8 October 2015 I handed down reasons for judgment in this proceeding ("the substantive reasons"). On 16 November 2015 I made orders giving effect to the substantive reasons and I now provide short reasons for judgment in relation to those orders. In these reasons I use the same abbreviations as in the substantive reasons. 2 In this matter the first applicant, the Union, alleged that by the first respondent, PKCT, deciding to: (a) abolish the positions of its employees, the second, third and fourth applicants, Adam Giddings, Jason Rosewarn and Jennifer Arber (i.e. to make them compulsorily redundant); and (b) make those employees compulsorily redundant rather than to redeploy them into other positions within PKCT or into work usually undertaken by contractors engaged at the terminal; it had breached the industrial agreement relating to employees at the Port Kembla Coal Terminal ("the Agreement"). 3 The Union also alleged that PKCT, with the knowing involvement of the second respondent, Peter Green, terminated Mr Giddings' employment because of his Union role and/or his industrial activities, which constituted adverse action for a prohibited reason in contravention of ss 340(1) and 346 of the Fair Work Act 2009 (Cth) ("the Act"). 4 The Union sought reinstatement of the affected employees. The parties agreed that the question of reinstatement should be dealt with in the first hearing, and that questions of other relief could be dealt with in a later hearing. The respondents did not submit at any point that the Court had no power to order reinstatement and their written submissions proceeded on the assumption that the Court had power. 5 In the substantive reasons I held that PKCT breached: (a) cl. 7 of the Agreement, in that it did not consult in relation to the relevant decisions as required by the Agreement; and (b) cl. 13.5 of the Agreement, in that it did not (in relation to Mr Giddings and Mr Rosewarn): (i) make use of redeployment and voluntary redundancy prior to implementing their "forced redundancies" (as the Agreement describes compulsory redundancies) as required under cl. 13.5.1; or (ii) investigate all avenues to avoid their forced redundancies including by the reduction of contractors, as required under cl 13.5.3. I did not hold that the decision to select Mr Giddings' and Mr Rosewarn's positions for abolition was a breach of the Agreement, however I held that before terminating their employment by way of forced redundancies PKCT was required to make use of redeployment and offers of voluntary redundancy to other employees, and to investigate all avenues to avoid their forced redundancy. I found that PKCT breached the Agreement because it had not done so. 6 I also held that PKCT, with Mr Green's knowing involvement, terminated Mr Giddings' employment for reasons that included his Union role and/or his industrial activities, which constituted adverse action for a prohibited reason in contravention of the Act. 7 I was conscious that there may be practical difficulties associated with an order for reinstatement and (at [474]) of the substantive reasons I said: Mr Giddings and Mr Rosewarn should be immediately reinstated to employment with PKCT from the date of their termination and to the pay and other terms and conditions of their former positions. While there may be difficult issues associated with reinstatement of Mr Giddings and Mr Rosewarn to positions which have been abolished I am satisfied that reinstatement is appropriate. I will hear the parties about any issues that arise. 8 By email from my Chambers on 8 October 2015, and at [476] of the substantive reasons, I directed the parties to confer and to file draft minutes of orders within 14 days reflecting the substantive reasons. I informed the parties that the matter may be listed on short notice to deal with any issues that arose. 9 On 22 October 2015 the solicitors for the applicants provided Chambers with draft minutes of orders which included orders for the reinstatement of Mr Giddings and Mr Rosewarn. Later the same day, Ashurst, the solicitors for the respondents, emailed Chambers and sought an extension of time to provide draft orders because of "the calculations that remain to be performed and the complexity of the orders that would require some time to obtain instructions and propose amendments". Ashurst requested the matter be relisted so that the parties may have assistance in determining the orders. 10 I acceded to that request. There were difficulties with a listing convenient to the parties and the Court but, after some false starts, the matter was listed for 11 November 2015. 11 On 9 November 2015 Mr Woodbury, a partner of Ashurst, wrote to Chambers and referred to difficulties in relation to the calculations of back pay having regard to the redundancy payments and been made. In relation to the proposed orders for reinstatement he stated: We have requested that the matter be relisted before his Honour so as to allow the Respondents the opportunity you understand what is, in a practical sense, expected of it under proposed orders 1 and 3 [the draft orders regarding reinstatement]. The Respondents are not in a position to consent to, or comment on, the orders proposed until that matter is clarified. 12 I had made it clear in the substantive reasons that I considered reinstatement of Mr Giddings and Mr Rosewarn was the appropriate remedy for the breaches of Agreement and the contraventions of the Act which I had found. I made directions for the parties to confer and to file draft orders reflecting the substantive reasons so as the Court was assisted to make orders to deal with any practical issues that might be identified. I expected that the respondents would raise any such issues and the Court would be assisted in crafting orders to deal with them. 13 For example, PKCT might have proposed that for practical reasons it was better that an order for reinstatement not be made until PKCT had first: (a) undertaken a process of seeking expressions of interest in voluntary redundancy from other employees; and/or (b) investigated all avenues to avoid their forced redundancies, including by properly considering reducing contractors' work; to see whether any suitable vacancies arose into which Mr Giddings and/or Mr Rosewarn could be placed. I had given some thought to such practical difficulties. PKCT might also have informed the Court of practical issues which I had not contemplated. 14 However, on 11 November 2015 the respondents did not raise any practical issues for PKCT. Instead counsel for the respondents said that he could not assist the Court in relation to any practical difficulties and submitted that the Court had no power to order reinstatement. Counsel declined to make submissions as to the form of orders concerning reinstatement because, as counsel put it, there was no position into which Mr Giddings and Mr Rosewarn could be reinstated. 15 Whether the Court has power to order reinstatement under the Act is a matter to be considered in the appeal which PKCT flagged during the hearing. 16 The Court sought the assistance of the respondents to craft orders, mindful of any practical difficulties for PKCT that might be said to arise, in relation to reinstatement. The result of PKCT's stance is that the Court did not have the benefit of hearing from the respondents as to any practical issues, which it may have been possible to ameliorate. 17 In the absence of any submissions as to any practical difficulties associated with the orders for reinstatement proposed by the applicants, I made the attached orders. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate: Dated: 18 November 2015