CSR Viridian Limited (formerly Pilkington Australia Limited) v
Claveria  FCAFC 177
On appeal, the Full Court of the Federal Court of Australia1.
overturned a decision that a trade union was a competent
administrative authority as defined by Article 5 of the Termination
of Employment Convention2.
The Court considered the meaning of "competent
authority" and "administrative" in the context of
the particular rights and responsibilities of trade unions in
C worked on the Appellant's automobile assembly line.
The Appellant's line manager took C to task for his alleged
practice of absenting himself from his work station from time to
time, in a manner that C felt to be "an oppressive regime of
surveillance". On 24 January 2007, C telephoned the branch
secretary of his Trade Union seeking its assistance. The branch
secretary later informed the line manager that he considered that C
had been "bullied and harassed". The line manager spoke
to the appellant's human resources manager, who said that
he was sick of coming over to the factory and that C should have
been sacked already.
The line manager convened a meeting at the factory attended by
C, a union delegate and others. At the end of the meeting,
C's employment was terminated.
C commenced proceedings in the Federal Court of Australia, inter
alia alleging that the appellant was in breach of section 659(2)(e)
of the Workplace Relations Act 1996 (Cth). That section applies
Article 5 of the Termination of Employment Convention, and
"(2) ... an employer must
not terminate an employee's employment for any one or more of
the following reasons, or for reasons including any one or more of
the following reasons: ...
(e) the filing of a complaint, or the participation in
proceedings, against an employer involving alleged violation of
laws or regulations or recourse to competent administrative
The trial judge was not satisfied that Mr C's complaint
to the union was not one of the reasons for his dismissal. Section
659(2) therefore potentially applied. She found that the Trade
Union was a "competent administrative authority" and that
Mr C's complaint to the union amounted to having
"recourse" to such an authority. She made orders for
reinstatement of Mr C's employment, all lost sick leave,
long service leave, annual leave etc, and ordered that the
Appellant pay a penalty of A$4,000 to Mr C.
The appellant appealed to the Full Court of the Federal Court of
The Full Court noted that:
(a) Article 14 in Part III of the Convention treats a
"competent authority" as distinct from
(b) In a 1995 judgment3 the Court held that "authority"
suggests a body that "is able to exercise command or
authority, something which a mere member of the public cannot do in
a public sense".
(c) Articles 2.4 and 2.5 of the Convention indicate that a
"competent authority" is one which has power to exclude
categories of workers from the application of the Convention.
The Full Court therefore concluded that "a
'competent authority' is a person or body with broad
public responsibilities, not one which represents workers or their
In relation to the word "administrative", the Court
considered that this carried the sense commonly given to it in the
public law lexicon of both the common law and the civil law words,
and analogous to the French droit administratif.
The Full Court acknowledged that a Trade Union has a right of
entry into premises under certain circumstances pursuant to
Australian Occupational Health & Safety legislation, and that
it is also capable of being a "party principal" in
industrial disputes. Nevertheless, it held (contra the trial judge)
that this did not bear on the question of whether the Trade Union
was a competent administrative authority under the Convention.
The Full Court set aside the orders made by the trial judge and
adjourned the proceedings for further argument on consequential
1. Gray, Goldberg and Jessup JJ
2. Convention Concerning Termination
of Employment at the Initiative of the Employer (ILC No 158)
3. Commissioner of Taxation v Bank of Western Australia Ltd (1995)
61 FCR 407
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