Major Tribunal Decisions in 2002

Abstract

The authors review some of the important decisions of the last year, including those relating to redundancy liabilities, transmission of business, union bargaining fees and the parameters of unprotected industrial action. In their review, the authors note the increasing propensity of industrial actors to opt for legally enforced resolutions ahead of industrially negotiated outcomes. The authors also comment that a failure to have regard to such an increasingly legal approach in industrial relations may hold the potential to unravel corporate and commercial transactions. In concluding, the authors express the view that while some of the pressing legal decisions of 2002 remain unresolved, one certainty is that the role of third party tribunals in abating the increasing trend of legalism will continue to be debated.

Major Tribunal Decisions in 2004

“…As discussed in a previous contribution, 50 the Federal Court applied a strict and technical approach to interpreting a certified agreement that applied to workers employed by Amcor Ltd ('Amcor') in its paper manufacturing business. The result of the application of this technical approach was that the employees engaged in the paper manufacturing business were held to have been entitled to severance payments when they consensually transferred their employment from Amcor to a related entity, Paper Australia Pty Ltd, for which they carried out the same jobs on the same terms and conditions.…”

“…The Full Court of the Federal Court upheld Justice Finklestein's decision. 52 In a previous contribution to this journal, 53 it was noted that the decision of the Federal Court was at odds with the seminal case on the issue of redundancy, the Termination, Change and Redundancy Case (the 'TCR Case'), 54 wherein it was not envisaged that severance payments should be made in cases of succession, assignment or transmission of a business. 55 The High Court found in favour of Amcor and overturned the judgment of the Full Court of the Federal Court in a decision that may be considered a good example of industrial common sense prevailing.…”

“…In a previous contribution to this journal, 1 it was noted that the judicial controversy surrounding the inclusion of union bargaining fees in federal certified agreements would need to be resolved by way of legislative intervention and/or a decision of the High Court. Since that time, there has been both legislative intervention 2 and, more recently, a decision of the High Court putting an end to the judicial controversy.…”

“…27 The majority noted that the important element of an offence under s. 170NC was intent to coerce another person to make an agreement, and consequently, it was immaterial that the contravening party did not appreciate the legal nature of the 'proposed agreement' or that the 'proposed agreement' was not capable of certification under Division 2 of the Act. 28 As a result, a majority of the High Court found that as the industrial action was not 'protected action' within the meaning of s. 170ML(2), the subsequent industrial action amounted to a contravention of s. 170NC (1).…”

“…Previous contributions to this journal have considered the operation of the transmission of business provisions of the Act. 30 It was noted that the High Court's decision in PP Consultants Pty Ltd v Finance Sector Union of Australia ('PP Consultants') 31 clarified the appropriate approach to the interpretation of the transmission of business provisions. In that decision, the High Court held that the question whether one person 'has taken over or succeeded to the business or part of a business of the business of another is a mixed question of fact and law' 32 and, further, as the word 'business' is 'chameleon-like', 33 it was not possible to formulate a general test to determine whether one employer is a successor to the business or part of the business of another.…”