Dundee Fashions Pty Ltd v Clothing & Allied T/U of Australia - [1987] FCA 86

IN THE FEDERAL COURT OF AUSTRALIA

)

OUEENSLAND DISTRICT REGISTRY

)

QLD

Q1 of 1987

INDUSTRIAL DIVISION

)

BETWEEN: DUNDEE FASHIONS PTY. LIMITED

Applicant

AND:

THE CLOTHING AND ALLIED TRADES UNION

OF AUSTRALIA

First Respondent

AND:

ANGELA BURT, PATRICIA MANSFIELD, STEPHANIE

McFARLANE, CAROLYN WATSON and

ESTELLE WESTAWAY

Second Respondents

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	2 MARCH 1987
WHERE MADE:	BRISBANE

THE COURT ORDERS

THAT:

1. The appllcatlon be struck out.

NOTE:

Settlement and entry of orders 1s dealt wlth I n

Order 36 of the Federal Court Rules.

C A T C H W O R D S

INDUSTRIAL, LAW - award - applicatlon for interpretation

- principally

a challenge to validity - no present intention to pursue -

whether should be struck

out.

Conciliation and Arbitratlon Act 1904 ss.60,	110
Dundee Fashions Pty. Llmited

v. The Clothinq and Allled Trades Union	of Australla & Ors.
Qld Q1 of 1987

IN THE FEDERAL COURT OF AUSTRALIA

)

QUEENSLAND DISTRICT REGISTRY

QLD

Q1 of 1987

INDUSTRIAL DIVISION

)

BETWEEN: DUNDEE FASHIONS PTY. LIMITED

Applicant

AND: THE CLOTHING AND ALLIED

TRADES UNION OF AUSTRALIA

First Respondent

AND:

ANGELA EURT, PATRICIA MANSFIELD, STEPHANIE

McFARLANE, CAROLYN

WTSON and ESTELLE

WESTAWY

Second Respondents

PINCUS J.

2 MARCH 1987

REASONS FOR JUDGMENT

The respondents ask for

an order that thls applicatlon

for an lnterpretatlon of an award of the Australlan Conclliatlon

and Arbltration Commlssion be struck out. The applicant does

not

oppose the appllcatlon's being

ad~ourned

sine dle, but reslsts an

order to strlke out.

It is

not clear to

me that It makes much

practical dlfference whether or not the appllcation

is struck out,

but since the respondents

have pressed for that order,

It 1 s

necessary to examine the matter in some detail.

In February 1986, the applicant dismissed a number of

its then employees. On

April 1986, Mr. Commissioner Neyland

varied the Clothing Trades Award

1982 in a number of ways, one of

which was the insertion

of a new clause 51 relating

to redundancy;

2 .

it provided for severance pay. Mr. Commissioner Neyland's order

was expressed to come into force from the beginning of the first

pay period to commence

on or after 16 October 1985, and to

continue in force for

12 months.

Subsequently, a dispute arose as to the entitlement

certain of the dismissed employees to severance pay under the

order of Mr. Commissioner Neyland. A notification of that dispute

was set down for hearing in November 1986, and then

was adjourned

to 18 December 1986.

20 January 1987, the appllcant filed an

applicatlon In this Court clalmlng

"an Interpretation of clause 51

- (redundancy) of Clothing Trades Award

1982". The applicatlon

did

not

speclfy

the

polnt

of interpretation

required to be

determined, although

it was accompanled by

an affidavit giving an

outline of the facts underlying the dispute.

On 2 2 January

1987, the matter

came before Mr. Deputy

_. Presldent

Rlordan

who

was

mformed…

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 Dundee Fashions Pty Ltd v Clothing & Allied T/U of Australia

Details

AGLC: Dundee Fashions Pty Ltd v Clothing & Allied T/U of Australia [1987] FCA 86
Case: [1987] FCA 86
Decision Date: 2 Mar 1987

CaseChat Overview and Summary

Dundee Fashions Pty Ltd sought an interpretation of clause 51 (redundancy) of the Clothing Trades Award 1982 in the Federal Court of Australia, Industrial Division. The respondents, the Clothing and Allied Trades Union of Australia and several employees, sought to have the application struck out. The central issue before Pincus J was whether the application, which appeared to challenge the validity of the award variation, should be struck out. The Court considered whether the application raised a genuine point of interpretation under s.110 of the Conciliation and Arbitration Act 1904 and whether it was an abuse of process to bring such proceedings under that section. The Court found that the application's principal purpose was to challenge the validity of the award variation, which is not within the scope of s.110. Additionally, the Court noted that there was no present intention to pursue the application, which further supported striking it out. Pincus J concluded that the application should be struck out as it was misconceived and constituted an abuse of process.

The Court's reasoning was grounded in the statutory framework provided by the Conciliation and Arbitration Act 1904. The Court highlighted that s.110 empowers the Court to give an interpretation of an award, but not to challenge its validity, which is precluded by s.60. The Court found that the application primarily sought to challenge the validity of the award variation, which is outside the purview of s.110. Furthermore, the Court took into account the absence of any intention to pursue the application, leading to the conclusion that it should be struck out. The Court emphasised the importance of adhering to the proper legal processes and preventing the misuse of court resources.

Orders