Construction, Forestry, Mining and Energy Union v Amcor Limited

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. Certain legal issues must be resolved. According to the parties the resolution of all these issues will require additional evidence and more argument. 2 The third thing that happened is that on 21 June Paper Australia applied for leave to intervene in the proceeding. Its principal, but not sole, purpose for wishing to intervene is to ensure that if former Amcor employees receive payments under cl 55 of the 1997 Certified Agreement, they will not be entitled to receive like amounts from Paper Australia either under their respective contracts of employment or pursuant to other certified agreements or awards. Although the union has conducted its case on the basis that employees could not "double dip", Paper Australia seeks formal confirmation of this. 3 The application for leave to intervene led directly to the next event. When the trial began, I raised with the parties the question whether it was necessary to join an employee as an additional respondent to represent himself and all other employees who would be affected by any findings that were made. I was persuaded that this course was unnecessary. In light of Paper Australia's application, I rather think that this may have been an error. Accordingly I informed the union that I would not proceed any further with the application unless all former Amcor employees were bound in the result. This led to an application that Mr Anderson be added as a respondent both personally and in a representative capacity. An order to that effect has now been made. 4 The final matter that must be mentioned is that Amcor has given notice that it intends to appeal my decision to the Full Court and has provided to me a proposed notice of appeal. Unsurprisingly, as I have not made any orders against which an appeal can be brought, the proposed notice of appeal is incomplete. Amcor has suggested that I should at least make a declaratory order which can then be taken to the Full Court. As to whether such an order would be final or not is still a matter of some controversy: see my discussion in Warramunda Village Inc v Pryde [2002] FCAFC 58. 5 All parties submit that the Full Court should rule on the correctness or otherwise of my construction of cl 55 before they go to any further trouble and expense in dealing with the outstanding issues. If my construction of cl 55 is wrong, then that will bring the litigation to an end and the parties will not incur any further expense. It is only if the Full Court upholds my construction that the remaining issues need to be resolved. 6 Initially I was of opinion that I should conclude the hearing and make all necessary final orders so that if any party were dissatisfied with the result, or any aspect of the result, there would only be one appeal. However, I have been persuaded that in the special circumstances of this case it is preferable to make some order which is capable of being appealed so that the construction question can be resolved by the Full Court before any further step is taken in the proceeding. It is best not to make any declaration of right, but instead to make an order that one employee, the additional respondent Mr Anderson, be paid his entitlements. For present purposes, the union has calculated those entitlements to be $88,677.30, a figure which Amcor does not dispute, so Amcor will be ordered to pay that amount to Mr Anderson. 7 The parties are in agreement that I make this order notwithstanding Amcor's contention that the power under s 178(6) is discretionary and that the amount to be paid may not be properly calculated. The order is to be made on the basis that Amcor will not be precluded from contending that I have a discretion to refuse to make orders in relation to the other employees. As regards quantum, the parties accept that fixing $88,677.30 as the sum to be paid to Mr Anderson will not prevent Amcor making submissions as to the proper calculation of the amounts due to other employees. These concessions were given in order to facilitate the making of an appealable order. 8 Finally, I should mention Paper Australia's application for intervention. In the course of argument I said I was minded to make the order sought because it seemed to me that Paper Australia had legitimate interests to protect which could properly be dealt with in the current proceeding. I formed that view on the basis that I would fully dispose of the proceeding before any appeal. Now things are different. Because I will make a final order, which will be taken to the Full Court, it would be wrong to make the intervention order. I therefore refuse the application without prejudice to Paper Australia's right to renew it if the appeal is unsuccessful. If Paper Australia wishes to intervene in the proceeding to make submissions before the Full Court, then it should make that application to the Full Court.