Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Port Kembla Coal Terminal Limited [2007] NSWIRComm 296

Industrial Court of New South Wales

CITATION: Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Port Kembla Coal Terminal Limited [2007] NSWIRComm 296

APPLICANT Construction, Forestry, Mining and Energy Union (New South Wales Branch)

PARTIES: RESPONDENT Port Kembla Coal Terminal Limited

INTERVENOR Attorney General of New South Wales

FILE NUMBER(S): IRC 6506 of 2005

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

CONSTITUTIONAL LAW - Application by registered organisation of employees on behalf of members for relief under s 106 of the Industrial Relations Act 1996 - Alleged misrepresentation by respondent employer as to superannuation entitlements - Notice of motion by respondent employer that Industrial Court had no jurisdiction to hear claim - Alleged inconsistency between State law and law of the Commonwealth - Whether there was a direct inconsistency between the provisions of a Preserved Collective State Agreement and orders claimed under s 106 of the Industrial Relations Act - Whether regulation 1.2(5) of the Workplace Relations Regulation 2006 (Cth) was invalid thereby having the effect of bringing to an end unfair contract proceedings on foot as at 27 March 2006 because they would be inconsistent with provisions of the Workplace Relations Act 1996 (Cth) - Held that respondent had not discharged the onus of showing that no conceivable order could be made under s 106 that would not be inconsistent with the relevant Commonwealth law - Held regulation 1.2(5) not invalid - Notice of motion dismissed - Costs CATCHWORDS: UNFAIR CONTRACT - Application by registered organisation of employees on behalf of members for relief under s 106 of the Industrial Relations Act 1996 - Alleged misrepresentation by respondent employer as to superannuation entitlements - Notice of motion by respondent employer that Industrial Court had no jurisdiction to hear claim - Alleged inconsistency between State law and law of the Commonwealth - Whether there was a direct inconsistency between the provisions of a Preserved Collective State Agreement and orders claimed under s 106 of the Industrial Relations Act - Whether regulation 1.2(5) of the Workplace Relations Regulation 2006 (Cth) was invalid thereby having the effect of bringing to an end unfair contract proceedings on foot as at 27 March 2006 because they would be inconsistent with provisions of the Workplace Relations Act 1996 (Cth) - Held that respondent had not discharged the onus of showing that no conceivable order could be made under s 106 that would not be inconsistent with the relevant Commonwealth law - Held regulation 1.2(5) not invalid - Notice of motion dismissed - Costs