Gary Parkinson (middle) said he's relieved about the ruling in favour of Independent Bargaining Representatives.
Gary Parkinson (middle) said he's relieved about the ruling in favour of Independent Bargaining Representatives. Campbell Gellie

Mackay Sugar loses landmark court case

MACKAY Sugar could have to repay at least $300,000 to independent bargaining representative cane growers after losing a landmark court case.

The judgment, which was handed down this morning by Supreme Court Chief Justice Catherine Holmes, found in favour of the growers, led by Gary and Trudi Parkinson and Lester and Gloria Paul.

They went into bat for members of the Independent Bargain Representatives group, those growers not represented by bargaining agents Canegrowers and ACFA when payment of Mackay Sugar's $2 a tonne levy was imposed in May, 2017.

The case revolved around interpretation of a clause (7c) in the Cane Supply and Processing Agreement, which all Mackay Sugar growers signed.

The clause calls for 'consultation' with growers on any amendments made to the document. However, it did not make clear whether 'consultation' includes coming to an agreement on amendments. 'Annexure D', through which the levy came into play, was made with such consultation.

Chief Justice Holmes ruled that Mackay Sugar "cannot amend Annexure D with effect against the applicants without the agreement of their bargaining representatives" and that the "deeds poll executed on April 12, 2018, are to no effect".

The judgment indicated that it would be an "entirely uncommercial decision" said Wallace and Wallace solicitor Greg Smart, who advised barrister Nick Ferrett on the case.

"Essentially, the judgment boils down to a conclusion from the Chief Justice that it would be an entirely uncommercial contract if one party had the unilateral power to vary the price," he said.

"Ultimately, this is a case about whether or not one party can change the contract without the agreement of the other.

"Mackay Sugar said so long as they have consulted with us (the growers), we said on a proper interpretation 'in consultation' meant we have to agree with any changes.

"Then they could change the price of sugar at will and no sensible business person would ever sign the contract to that effect."

The Parkinsons, the Pauls and IBR group members welcomed the judgment.

Mackay Sugar executive chairman and CEO Mark Day said Mackay Sugar, Canegrowers and the ACFA had reached agreement on the $2 a tonne grower contribution on May 23, 2017.

Mr Day said the agreement bound Mackay Sugar and the growers represented by these bargaining representatives.

"A small number of growers were not represented by Canegrowers and ACFA on May 23, 2017 and this judgment covers their situation," Mr Day said.

"Mackay Sugar will abide by the judgment while determining whether an appeal might be appropriate."

The company has 28 days within which to decide whether it will appeal the decision.

For more on this story, please see tomorrow's edition of the Daily Mercury.