Endeavour Coal and others v CFMEU [2007] NSWIRComm 70

Industrial Court of New South Wales

CITATION: Endeavour Coal and others v CFMEU [2007] NSWIRComm 70

APPLICANTS: Endeavour Coal Pty Ltd and others PARTIES: RESPONDENT: Construction, Forestry, Mining and Energy Union (New South Wales branch)

FILE NUMBER(S): IRC 3146 of 2006

CORAM: Wright J President; Walton J Vice-President; Boland J

CATCHWORDS: Declaratory relief - consideration confined to jurisdictional challenge - declaration as to application of award left open for later consideration - whether Commission's jurisdiction to make an award for long service leave is excluded by operation of s16(1) Workplace Relations Act 1996 - general argument drawing on purpose - not demonstrated that legislature intended to exclude general award making power of Commission - phrase "deals with" considered - Re Transport Industry applied - ss 10 and 11 of the Industrial Relations Act deal with long service leave for the purposes of ss 16(2)(c) and (3)(f) Workplace Relations Act 1996 - declaratory relief refused

Industrial Relations Act 1996, ss 10, 11, 154 Industrial Relations Act 1999 Qld LEGISLATION CITED: Long Service Leave Act 1955 Workplace Relations Act, ss 16, 17 Workplace Relations Regulations 2006

Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46 Construction, Forestry, Mining and Energy Union (NSW Branch) v Newcrest Mining Ltd (2005) 139 IR 50 Crewdson v Department of Community Services & Anor [2002] NSWIRComm 121 Dingjan and Others; ex parte Wagner and Anor Re (1995) 183 CLR 323 Ex parte McLean (1930) 43 CLR 472 Ford v SAS Trustee Corporation (2000) 98 IR 444 Hospital Employees (Metrop) Conciliation Committee Re [1938] AR 507 In Re Butchers Wholesale (Cumberland) and other Awards [1953] AR 738 CASES CITED: In re Engine Drivers, & c. (South Maitland Railways Pty. Ltd.) Conciliation Committee [1938] AR 266 In re Fire Brigade Employees (State) Conciliation Committee (No. 2) [1945] AR 379 Inquiry into matters relating to the availability of work at Tristar Steering and Suspension Australia Ltd Re [2007] NSWIRComm 50 Lindner Pty Ltd v Builders Licensing Board [1982] 1 NSWLR 612 Nikolaus Beattie & Ors v Commonwealth Bank of Australia [2006] NSWIRComm 238 State of NSW & Ors v Commonwealth of Australia (2006) 81 ALJR 34 (Workchoices) Re Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No 2) Re (2006) 158 IR 17 Unilever Australia Limited v The Australian Workers' Union, New South Wales and another (2005) 141 IR 266 Unions NSW v Carter Holt Harvey Wood Products Australia Pty Ltd (2006) 149 IR 361 Wenn v A-G (Vic) (1948) 77 CLR 84