FEDERAL COURT OF AUSTRALIA

Bassett v Coles Myer Logistics Pty Ltd [2003] FCA 551

SANDRA KAYE BASSETT  and  WAYNE FORD  -v-  COLES MYER LOGISTICS PTY LTD

V 424 of 2003

RYAN J

2 JUNE 2003

MELBOURNE

THE COURT ORDERS THAT:

1.         The motion for an interlocutory injunction be refused. 

2.         The directions hearing in this matter be adjourned to a date to be fixed

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

REASONS FOR JUDGMENT

1                     There is before the Court a motion for an interlocutory injunction restraining the respondent Coles Myer Logistics Pty Ltd (“Logistics”), from taking any further steps in the Australian Industrial Relations Commission (“the Commission”), to vary the Coles Myer Ltd National Union of Workers Woodland 2003 Certified Agreement (“the Agreement”).

2                     The applicants were formerly employed by the respondent, Logistics, as Human Resources Manager and a Human Resources Officer respectively at Logistics’ Woodlands Distribution Centre.  The applicants applied to this Court on 29 May this year for the imposition of a penalty on Logistics for failure to pay to the applicants redundancy payments prescribed by clause 11.9.3 of the Agreement after they had been made redundant in November 2002.  They also seek orders for payment of the unpaid amounts and interest thereon.  In the same application there is a claim, which I take to be in the alternative, for damages for breach of the applicants’ contracts of employment.

3                     After being notified on 1 May 2003 of the applicants’ claims, Logistics on 24 May this year applied to the Commission for a variation of the Agreement pursuant to s 170MD(6) of the Workplace Relations Act 1996 (“the Act”).  That subsection provides:

‘The Commission may, on application by any person bound by a certified agreement, by order vary a certified agreement:

(a)       for the purpose of removing ambiguity or uncertainty;  or

(b)       for the purpose of including, omitting or varying a term (however expressed) that authorises an employer to stand-down an employee.’

4                     It is undesirable that I express any view about the strength or weakness of the case which Logistics might advance before the Commission.  The first hearing, I have been told, of the application to the Commission has been fixed for next Wednesday, 4 June.  It would be a strong step for this Court to preclude a party to an agreement from seeking the exercise by the Commission of a jurisdiction which the Act specifically entrusts to it.  I decline to take that step.

5                     There have been various observations by members of this Court about the desirability of parties to industrial agreements availing themselves of a facility like that afforded by s 170MD(6) before this Court makes immediately enforceable orders or declarations of rights under an industrial agreement which is arguably uncertain or ambiguous.

6                     I regard the present case as distinguishable from McGarry v Boonah Clothing Pty Ltd (1993) 49 IR 66 to which was referred by Mr Howells of Counsel for the applicants.  In that case Gray J declined a request to adjourn proceedings to enable an application for variation of an award to be made to the Commission.  However, that course was taken after the matter had been fully argued and after his Honour had made findings of fact about the amounts due to various employees on the construction of the award which he had been persuaded to adopt.

7                     In the present case there has been no hearing before this Court and, as I understand the commitments of the Court, it would be some months before the present matter could be resolved here.  Accordingly, the motion for an interlocutory injunction is refused.  I shall adjourn the directions hearing in this matter to a date to be fixed.

Associate:

Dated:              2 June 2003