Spalding v Can't Tear ‘Em Pty Ltd

FEDERAL COURT OF AUSTRALIA

Spalding v Can’t Tear ‘Em Pty Ltd [1999] FCA 1222

INDUSTRIAL LAW – Claim for severance and sick leave payments – Entitlements provided by certified agreement binding employer in respect of its employees employed pursuant to Clothing Trades Award – Whether appellant employed pursuant to the award – Interpretation of award.

Industrial Relations Act 1988 (Cth) s 170MC
Workplace Relations Act 1996 (Cth) s179
Workplace Relations and Other Legislation Amendment Act 1996 (Cth) Sch 8

Clothing Trades Award 1982

Construction Forestry Mining and Energy Union v Mount Thorley Operations (1997) 79 FCR 96, referred to
O’Toole v Fairey Aviation Co of Australasia Pty Ltd (1953) 78 CAR 143, referred to
Re Rubber Plastic & CableMaking Industry Award (1963) 8 FLR 395, applied
Cutmore v Bianchin (1974) 22 FLR 127, considered
De Havilland Aircraft Pty Ltd v Boyd (1948) 61 CAR 735, applied
Re Graphic Arts Award 1948 (1952) 75 CAR 138, applied

ANGELITA SPALDING v CAN’T TEAR ‘EM PTY LTD
Q 122 of 1999

WILCOX, MARSHALL AND DOWSETT JJ
BRISBANE
3 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 122 of 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ANGELITA SPALDING Appellant
AND:	CAN'T TEAR 'EM PTY LTD Respondent
JUDGES:	WILCOX, MARSHALL AND DOWSETT JJ
DATE OF ORDER:	3 SEPTEMBER 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The appeal be allowed and the order made by Kiefel J on 14 April 1999 be set aside.

2.The matter be remitted to Kiefel J for the purpose of calculation of the relevant entitlements of the appellant.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 122 of 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ANGELITA SPALDING Appellant
AND:	CAN'T TEAR 'EM PTY LTD Respondent

JUDGES:	WILCOX, MARSHALL AND DOWSETT JJ
DATE:	3 SEPTEMBER 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

WILCOX J:  

1. I have had the advantage of reading in draft form the reasons for judgment of Marshall J.  I agree with his Honour that the appeal should be upheld, although I reach that conclusion by a somewhat different route.

2. The appellant’s claim for severance payments and sick leave entitlements is based on the certified agreement known as Yakka Pty Ltd Redundancy Agreement December 1994.  By cl 5 of that agreement, it is binding upon the respondent “and its employees employed pursuant to the terms and conditions of the Clothing Trades Award 1982 throughout Australia”.  So the appellant is entitled to the benefits available under the certified agreement if, but only if, she was, prior to her termination, employed pursuant to the terms and conditions of the award.

3. Clause 5 of the award dealt with its incidence.  The clause commenced as follows:

   “(a)This award shall be binding upon the employers named in the Schedules ‘A’ and ‘B’ hereto and…