Amcor Ltd v Construction Forestry Mining & Energy Union - [2003] HCATrans 529

[2003] HCATrans 529

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M64 of 2003

B e t w e e n -
AMCOR LIMITED
Applicant
and
CONSTRUCTION FORESTRY MINING AND ENERGY UNION
First Respondent
NEVILLE GEORGE ANDERSON
Second Respondent
MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS
Third Respondent

Office of the Registry
Melbourne No M73 of 2003

B e t w e e n -
MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS
Applicant
and
CONSTRUCTION FORESTRY MINING AND ENERGY UNION
First Respondent
NEVILLE GEORGE ANDERSON
Second Respondent
AMCOR LIMITED
Third Respondent
Applications for special leave to appeal

GLEESON CJ
McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 2003, AT 12.42 PM

MR A.C. ARCHIBALD, QC: May it please the Court, I appear with my learned friends, MR R.J. BUCHANAN, QC and MR M.F. WHEELAHAN, for Amcor. (instructed by Allens Arthur Robinson)

MR R.R.S. TRACEY, QC: If the Court pleases, I appear with my learned friend, MR J.L. BOURKE, for the Minister. (instructed by Phillips Fox)

MR S.C. ROTHMAN, SC: If the Court pleases, I appear with my learned friend, MR S.J. HOWELLS, for the first and second respondents in both applications. (instructed by Ryan Carlisle Thomas)

GLEESON CJ: I asked the Registrar to notify the parties that I hold some shares in Amcor and PaperlinX. I understand that the parties have no objection to me sitting.

MR ROTHMAN: We have no objection.

GLEESON CJ: Yes, Mr Archibald.

MR ARCHIBALD: Might we make two points at the outset. First, redundancy as a concept has, in our contention, been long understood as entailing cessation of position. The cases, in our contention, bear that out. By way of illustration, the well‑known TCR Case referred to redundancy as involving redundancy of job in contrast to redundancy of the employee. The Commission in that case at page 56 added that redundancy emphasises as a concept the disappearance of the job or the work. That is the ordinary concept which we say has been long accepted and understood in the field in which this agreement was made. Here the clause of the certified agreement picked up explicitly and unerringly that precise concept, for clause 55.1 was to be engaged upon redundancy of position.

GLEESON CJ: These certified agreements sometimes deal with the subject of transfer of business, do they not?

MR ARCHIBALD: They can. A lot of them do and, on our analysis, a considerable number do not.

GLEESON CJ: The problem that has arisen in this case has arisen because this one did not.

MR ARCHIBALD: No, in our submission. If our contentions are correct, it was entirely unnecessary and would have been a superfluity in the circumstances of this case to have had such a clause. One might out of abundance of caution deal with such a circumstance, but the circumstance

that it was not in this case dealt with conveys nothing about the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amcor Ltd v Construction Forestry Mining & Energy Union

Details

AGLC: Amcor Ltd v Construction Forestry Mining & Energy Union [2003] HCATrans 529
Case: [2003] HCATrans 529
Decision Date

CaseChat Overview and Summary

Amcor Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU) were the parties before the High Court of Australia. The dispute concerned the interpretation and application of a certified industrial agreement, specifically whether Amcor had breached its obligations under the agreement by outsourcing certain work. The CFMEU alleged that Amcor's actions constituted a breach of the agreement, while Amcor contended that its conduct was permissible under the terms of the agreement.

The High Court was required to determine whether Amcor's outsourcing of work to a third-party contractor, which resulted in the termination of employment for some of its own employees, constituted a breach of the certified industrial agreement. Central to this determination was the interpretation of clauses within the agreement relating to redundancy, termination of employment, and the scope of Amcor's obligations to its employees. The court also considered whether the agreement imposed any restrictions on Amcor's ability to contract out work or to alter its operational structure.

The High Court ultimately found in favour of Amcor. The majority of the Court held that the industrial agreement did not contain express or implied terms that prohibited Amcor from outsourcing the work in question. The Court reasoned that the agreement, when read as a whole, did not impose a positive obligation on Amcor to continue performing the work with its own employees, nor did it restrict Amcor's fundamental right to manage its business, including the decision to contract out services. The principles applied focused on the ordinary meaning of the contractual language and the absence of any clear intention within the agreement to limit management prerogative in this manner.

Orders