Construction, Forestry, Mining And Energy Union v - [2014] HCATrans 266

[2014] HCATrans 266

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M117 of 2014

B e t w e e n -
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Applicant
and
BORAL RESOURCES (VIC) PTY LTD (ACN 004 620 731)
First Respondent
ALSAFE PREMIX CONCRETE PTY LTD (ACN 003 290 999)
Second Respondent
BORAL BRICKS PTY LTD (ACN 082 448 342)
Third Respondent
BORAL MASONRY LTD (ACN 000 223 718)
Fourth Respondent
BORAL AUSTRALIAN GYPSUM LTD (ACN 004 231 976)
Fifth Respondent
BORAL WINDOW SYSTEMS LTD (ACN 004 069 523)
Sixth Respondent
ATTORNEY‑GENERAL FOR THE STATE OF VICTORIA
Seventh Respondent

Office of the Registry
Melbourne No M118 of 2014

B e t w e e n -
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Applicant
and
GROCON CONSTRUCTORS (VICTORIA) PTY LTD (ABN 98 148 006 624)
First Respondent
GROCON (FCAD) PTY LTD (ACN 143 621 514)
Second Respondent
GROCON CONSTRUCTORS (VIC) PTY LTD (ABN 88 127 996 436)
Third Respondent
ATTORNEY‑GENERAL FOR THE STATE OF VICTORIA
Fourth Respondent
Application for stay and directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 20 NOVEMBER 2014, AT 9.31 AM

____________________

MR P.J. MORRISSEY, SC: May it please the Court, I appear for the applicant in M117 with my learned friends, MR G.J. BOAS and MS J.D. WATSON. In matter M118 I appear with MS R.B. SHANN and MS J.D. WATSON. (instructed by Slater & Gordon)

MR J.L. SNADEN: May it please the Court, I appear for the Boral parties, your Honour, the first to sixth respondents. (instructed by Fisher Cartwright Berriman)

MR J.B. DAVIS: May it please the Court, I appear with MR B.W. JELLIS for the seventh respondent. (instructed by Victorian Government Solicitor)

MS R.M. NELSON: I appear on behalf of the first to third respondents, the Grocon parties. (instructed by Herbert Smith Freehills)

MR B.W. JELLIS: I appear for the fourth respondent in the Grocon matter. (instructed by Victorian Government Solicitor)

HIS HONOUR: Before we begin, I should draw the attention of the parties to something that is probably obvious to them anyway, but my wife was a member of the Full Court that determined the matter of Director, Fair Work Industry Inspectorate v CFMEU. It is not a matter that I see as presenting any difficulty at all, but it is something to which I draw the attention of the parties in case they thought there was any difficulty that emerged from that fact.

MR MORRISSEY: No, your Honour, we do not see any difficulty.

HIS HONOUR: Yes, Mr Morrissey.

MR MORRISSEY: Your Honour, may I just inquire, does your Honour have before you administratively an outline of argument ‑ ‑ ‑

HIS HONOUR: Yes, I have looked at the outlines of argument, I have looked at the papers. I have looked – I cannot say I have read word for word, I have looked at the judgment of 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.

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Details

Case: [2014] HCATrans 266
Decision Date

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) brought proceedings against a company, seeking to enforce a term of an enterprise agreement. The dispute concerned the interpretation and application of a clause within the agreement that stipulated the circumstances under which an employee could be dismissed. The matter ultimately came before the High Court of Australia.

The central legal issue before the High Court was whether the company had breached the enterprise agreement by dismissing an employee without adhering to the procedural requirements outlined in the relevant clause. This required the Court to determine the precise meaning and scope of the dismissal provisions within the agreement and whether the company's actions constituted a failure to comply with those provisions.

Hayne J, in his reasons, focused on the plain language of the enterprise agreement and the established principles of contractual interpretation. His Honour considered the ordinary meaning of the words used in the dismissal clause and the context in which they appeared. The Court determined that the company's conduct did not satisfy the conditions precedent to dismissal stipulated in the agreement, thereby constituting a breach. The Court found that the employer had failed to follow the agreed process for termination.

Orders