Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Port Kembla Coal Terminal Ltd [2013] NSWIRComm 92

Industrial Relations Commission New South Wales Medium Neutral Citation: Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Port Kembla Coal Terminal Ltd [2013] NSWIRComm 92 Hearing dates: 3, 9,10,11, 12, 15, 16, 22 ,23, 24 October, 2012; 18, 19, 20, 25 February 2013; 29, 30 April 2013; 1, 2 May 2013; Submissions: 30, 31 July 2013 Decision date: 14 October 2013 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: (a) a declaration that the contracts of employment between Port Kembla Coal Terminal Ltd and the employees identified in the proceedings were unfair in failing to provide superannuation benefits equivalent in value to the benefits available under the provisions of the State Authorities Superannuation Scheme as at August1990; (b) the said contracts of employment are varied to include a provision that each employee shall be paid a lump sum calculated by reference to: (i) the salary payable to each employee at February 2004, or the salary payable on the last day of service if leaving employment prior to February 2004; (ii) the completed years of service performed between August 1990 and February 2004; (iii) the rate of 1.25 weeks of salary for each completed year of service with Port Kembla Coal Terminal Ltd. (c) the amounts payable pursuant to order (b) above shall be subject to the payment of interest calculated in accordance with the provisions of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 and apply to the period from 12 December 2005 (the date of filing) until the date of this judgment; (d) the matter will be relisted to deal with any submissions as to costs, or to deal with any unintended difficulty that may arise from the present form of the orders. Catchwords: INDUSTRIAL RELATIONS ACT - s 106 - alleged unfair contract arising from new superannuation arrangements - privatisation of coal terminal - former employees obtain employment with new terminal operator - employees no longer eligible to subscribe to public sector superannuation scheme - whether new coal terminal operator held out to employees that their superannuation arrangements would be equivalent to public sector superannuation and that they would be no worse off in relation to superannuation benefits - expert actuarial evidence for both parties - significant division of expert opinion - whether proceedings should be determined on actuarial evidence alone - Court not constrained to principles applicable to assessment of common law damages - compensation approach appropriate in exercising broad discretion to make a money order just in the circumstances of the case - laches - cross-claim - jurisdictional limit considered - contracts varied - interest payable