Leaford v D & R Henderson Pty Ltd [1996] IRCA 653

DECISION NO:653/96 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1407 of 1996 VI 1408 of 1996 B E T W E E N: Bruce LEAFORD Applicant A N D James DUNN Applicant A N D CONSTRUCTION MINING FORESTRY & ENERGY UNION Applicant A N D D & R HENDERSON PTY LTD Respondent REASONS FOR DECISION 17 December 1996 PARKINSON JR This is an application made pursuant to Section 170EA of the Workplace Relations Act 1996 ('the Act'). The hearing of these proceedings occurred on 28 and 29 October, 1996. These are my reasons for decision. The applicants contend that their employment was terminated without valid reason and for the reason of their participation in proceedings in the Australian Industrial Relations Commission ('the Commission') and as a consequence of their membership of the Construction Forestry Mining and Engineering Union. ('the Union') The applicants contend that they were selected for redundancy as a consequence of these matters and not as a consequence of any objective assessment of their skills and capacity.

Further it was submitted that the applicants were each entitled to the benefit of a preference clause contained in the Timber Industry Consolidated Award 1990, ('the Award') an Award of the Australian Industrial Relations Commission, and that the respondent failed to apply the provisions of that clause and also failed to adopt the procedures provided for in that Award as applicable in circumstances where employment is to be terminated for redundancy. The respondent contends that the termination of employment of both applicants was as a consequence of the operational requirements of the business. It contends that there had been a reduction in production and profit in the business centre and that the applicants were selected for redundancy as a consequence of an assessment of their skills and capacity as compared to other employees. The respondent denies that the applicants' membership of the union or participation in proceedings of the Commission formed any part of the reason for the termination of the employment. The respondent operates a number of manufacturing premises which process raw timber product into a value added product. It manufactures particleboard and creates melamine laminated product, together with a rough pine saw milling facility. The applicants were employed at the respondent's melamine production facility at Cooloroo in Victoria. Mr Dunne was employed as a process worker/general hand on 27 March 1995. He was initially employed as a casual employee and subsequently became a permanent employee. During the course of his employment with the respondent he operated most of the equipment in the premises. Mr Leaford was employed as a process worker/general hand. He also was initially employed as a casual employee and subsequently became a permanent employee.