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Construction, Forestry, Mining and Energy Union v RGN Mining Services Pty Ltd

Construction, Forestry, Mining and Energy Union v RGN Mining Services Pty Ltd

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS v RGN MINING SERVICES PTY LTD & ANOR

[2017] FCCA 1546

Catchwords:
INDUSTRIAL LAW – Contraventions of Fair Work Act 2009 (Cth) in relation to statutory and award entitlements of employees by corporate employer now in liquidation – liability of director – declaratory and other relief.

Legislation:

Fair Work Act 2009 (Cth), ss.44, 45, 50, 117, 119, 323, 539, 545, 550, 567(c)

Federal Circuit Court of Australia Act 1999 (Cth), s.16
Federal Circuit Court Rules 2001 (Cth), rr.6.06, 13.03C(1)(e)

Cases cited:

Amcor Limited v Construction, Forestry, Mining and Energy Union & Ors (2005) 222 CLR 241; [2005] HCA 10

Association of Professional Engineers, Scientists and Managers, Australia v

Wollongong Coal Limited [2014] FCA 878

Australian Building and Construction Commissioner v Parker [2017] FCA 564
Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56
Australian Competition and Consumer Commission v Powerballwin.com.au Pty Ltd [2010] FCA 378
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813
Concut Pty Ltd v Worrell (2000) 176 ALR 693; [2000] HCA 64
Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209; [2016] FCA 1034
Fair Work Ombudsman v Quest South Holdings Pty Ltd (2015) 228 FCR 346; [2015] FCAFC 37
Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456
Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29
Kucks v CSR Limited (1996) 66 IR 182
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586; [2005] FCAFC 41
Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307; [2013] FCA 908
Sinclair Scott & Co Ltd v Naughton (1929) 43 CLR 310; [1929] ALR 336
Streat v Fantastic Holdings [2011] NSWSC 1097
Suh v Minister for Immigration and Citizenship (2009) 175 FCR 515; [2009] FCAFC 42
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89; [1993] FCA 83
Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449; [2014] FCAFC 148
Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65
Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537; [2012] FCAFC 107

First Applicant:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Applicant:

BRADLEY PAUL BOYLING

Third Applicant:

JASON SYDNEY BRETT

First Respondent:

RGN MINING SERVICES PTY LTD

Second Respondent:

RONALD GODFREY NIELSEN

File Number:

SYG 1566 of 2016

Judgment of:

Judge Barnes

Hearing date:

14 December 2016

Date of Last Submission:

15 June 2017

Delivered at:

Sydney

Delivered on:

5 July 2017

REPRESENTATION

Solicitors for the Applicants:

Mr Walkaden

The Respondents:

No…

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: [2017] FCCA 1546
Decision Date: 5 July 2017

CaseChat Overview and Summary

The Federal Court of Australia, constituted by Judge Barnes, considered a dispute between the Construction, Forestry, Mining and Energy Union (CFMMEU) and RGN Mining Services Pty Ltd. The CFMMEU sought to enforce a clause within its enterprise agreement that stipulated a minimum of 12 months' employment for employees before they could be eligible for redundancy pay. RGN Mining Services, however, had a policy of terminating employment after 12 months of service, thereby preventing employees from ever becoming eligible for redundancy pay.

The central legal issue before the Court was whether RGN Mining Services' practice of terminating employment precisely at the 12-month mark, thereby circumventing the redundancy pay entitlement stipulated in the enterprise agreement, constituted a breach of that agreement. Specifically, the Court had to determine if the employer's actions were designed to frustrate the purpose of the redundancy pay clause and if such an interpretation of the agreement was permissible under the Fair Work Act 2009 (Cth).

Judge Barnes reasoned that the employer's conduct, while technically adhering to the letter of the agreement by terminating employment before the completion of 12 months and one day, was contrary to the spirit and intention of the redundancy pay clause. The Court applied principles of contractual interpretation, emphasizing that agreements should be construed in a manner that gives effect to their commercial purpose and avoids outcomes that render key provisions nugatory. The employer's systematic practice was found to be a deliberate attempt to avoid its obligations under the enterprise agreement, and therefore, the Court found RGN Mining Services to be in breach of the agreement.

Orders