Construction, Forestry, Mining and Energy Union v Amcor Limited

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Amcor Limited
[2002] FCA 878

Workplace Relations Act 1996 (Cth) s 178(6)

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION V AMCOR LIMITED

V414 of 2000

FINKELSTEIN J
MELBOURNE
12 JULY 2002

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V414 of 2000

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant
AND:	AMCOR LIMITED and NEVILLE GEORGE ANDERSON Respondents
JUDGE:	FINKELSTEIN J
DATE OF ORDER:	12 JULY 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The first respondent pay to the second respondent the sum of $88,677.30 as and for his net entitlement for accrued sick leave, accrued annual leave, accrued long service leave and three weeks’ pay for each year of service under the Australian Paper/Amcor Fibre Packaging Agreement 1997 with the question of interest reserved.

2.The execution of order 1 be stayed pending the hearing and determination of the first respondent’s proposed appeal from order 1.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V414 of 2000

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant
AND:	AMCOR LIMITED and NEVILLE GEORGE ANDERSON Respondents

JUDGE:	FINKELSTEIN J
DATE:	12 JULY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Since handing down my reasons for judgment on 13 May 2002 several things have happened. First, the parties have filed submissions on what they say are the appropriate orders to be made. For reasons that will shortly become apparent it is not necessary for me to go into these submissions in any detail. I should, however, mention that one point upon which the parties are at issue is whether or not the court’s power under s 178(6) of the Workplace Relations Act 1996 (Cth) to order the payment of amounts underpaid is discretionary. The union says that there is no discretion and asks that I order Amcor to pay the amounts due under clause 55 of the 1997 Certified Agreement to all employees because they have a legal entitlement to those amounts. Amcor says that the power to award an employee the amount of any underpayment is discretionary (s 178(6) says that “the court may order the employer to pay to the employee the amount of the underpayment”) and points to a number of factors in support of its contention that no order should be made. The second matter is that, if an order requiring Amcor to pay the amount of the underpayment should be made, the parties have not been able to reach agreement on the amounts. Indeed, it is common ground that there will be some difficulty in establishing the precise amounts due, as many employees will have received some of their entitlements from their new employer, Paper Australia Pty Ltd. It also seems to be common ground, at least so far, that the employees must give credit for any amounts received from Paper Australia. The difficulties are not confined to problems of calculation.…