Port Kembla Coal Terminal Limited v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2014] NSWIRComm 39

Industrial Relations Commission New South Wales Medium Neutral Citation: Port Kembla Coal Terminal Limited v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2014] NSWIRComm 39 Hearing dates: 19 and 20 May 2014 Decision date: 15 August 2014 Jurisdiction: Industrial Court of NSW Before: Walton J, President; Staff J; Boland AJ Decision: The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The judgment and orders of Haylen J are quashed. (4) Within 14 days of the date of this judgment the respondent shall file and serve written submissions on costs. The appellant has a further 14 days in which to reply. Unless a party seeks to be heard orally, the question of costs will be determined on the papers. Catchwords: APPEAL - Application for leave to appeal and appeal - UNFAIR CONTRACT - Findings at first instance that contracts or arrangements between Port Kembla Coal Terminal Limited (PKCT) and 78 employees concerning entitlements to superannuation were unfair - Orders made at first instance for compensation - Whether primary judge erred in finding contracts or arrangements were unfair in failing to provide superannuation benefits equivalent in value to the benefits available under the provisions of the State Authorities Superannuation Scheme (SASS) that previously covered employees prior to sale of Coal Terminal to PKCT - Whether primary judge erred in finding individual employees of PKCT were worse off under PKCT superannuation scheme - Whether primary judge erred in finding the contracts or arrangements were unfair because employees were in an inferior bargaining position - Whether primary judge erred in admitting evidence that purported to show superannuation benefits under the PKCT scheme were not of equivalent value to those under SASS - Leave to appeal granted - Appeal upheld - Orders and judgment at first instance quashed. Legislation Cited: Evidence Act 1995 Industrial Arbitration Act 1940 Industrial Relations Act 1996 Workplace Relations Amendment (Work Choices) Act 2005 (Cth) Cases Cited: A&M Thompson Pty Ltd v Total Australia [1980] 2 NSWLR 1 Baker v National Distribution Services Ltd (1993) 50 IR 254 Davies v General Transport Development Pty Ltd [1967] AR (NSW) 371 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Port Kembla Coal Terminal Ltd [2007] NSWIRComm 296; (2007) 169 IR 141 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Port Kembla Coal Terminal Ltd [2013] NSWIRComm 92 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Haddad v S & T Income Aid Specialists Pty Ltd (1984) 13 IR 16 Hasyim v Lark [1979] AR (NSW) 909; Kennedy v Martinez [2011] NSWIRComm 137 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Port Kembla Coal Terminal Ltd v Industrial Court of New South Wales [2009] NSWCA 70; (2009) 182 IR 453 Port Macquarie Golf Club v Stead (1996) 64 IR 53 Terzian v Gattellari [1972] AR (NSW) 591 Category: Principal judgment Parties: Port Kembla Coal Terminal Limited (Appellant) Construction, Forestry, Mining and Energy (New South Wales Branch) (Respondent) Representation: RC Kenzie QC with SEJ Prince of counsel (Appellant) AR Moses SC with R Reitano of counsel (Respondent) Ashurst Australia (Appellant) Slater & Gordon (Respondent) File Number(s): IRC 895 of 2013