Australian Workers' Union, The v AstraZeneca Pty Ltd - [2018] FWC 4660

[2018] FWC 4660

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Australian Workers’ Union, The

AstraZeneca Pty Ltd

(C2017/5066)

DEPUTY PRESIDENT DEAN

SYDNEY, 8 AUGUST 2018

Application to deal with a dispute – personal/carers leave – National Employment Standards.

The Australia Workers’ Union (AWU) filed an application pursuant to s.739 of the Fair Work Act 2009 for the Fair Work Commission to deal with a dispute with AstraZeneca Pty Ltd (AstraZeneca).

The application was made in accordance with clause 6 (Conflict Resolution & Avoidance of Industrial Disputes) of the AstraZeneca Enterprise Agreement 2016 (the Agreement). The Agreement has a nominal expiry date of 22 June 2019.

The AWU filed an amended application in response to an objection by AstraZeneca as to the jurisdiction of the Commission to deal with the dispute. The objection was subsequently withdrawn.

The parties agree that this dispute is about how AstraZeneca is accruing and deducting personal/carer’s leave for employees undertaking shiftwork.

The AWU and AstraZeneca each provided a statement of facts, and relied on oral and written submissions. No evidence was called by either party.

The AWU’s application sought the determination of the following question:

“Is [AstraZeneca’s] current approach to the accrual and deduction of personal/carer’s leave for employees on Rosters 1, 2 and 3 consistent with the National Employment Standards?”

The AWU contended that the answer to the question was no, while AstraZeneca contended that the answer was yes.

At the hearing on 20 February 2018, Mr S Crawford appeared on behalf of the AWU, and Mr HJ Dixon SC appeared for AstraZeneca. Permission was granted for both parties to be legally represented.

Subsequent to the hearing, a decision was made on 13 April 2018 by Vice President Hatcher in Mondelez Australia Pty Ltd[1] (Mondelez). As it appeared that the Mondelez decision may be relevant to the matter for determination in this dispute, the parties were invited to make additional submissions as to its relevance. Both parties filed further submissions on 17 May 2018.

Factual background

The Agreement provides that personal/carer’s leave be accrued and taken in accordance with the National Employment Standards (NES). AstraZeneca does not dispute that the entitlement to personal/carer’s leave is 10 days per annum.

The matters which are not contested provide context for the issue in dispute:

1.AstraZeneca employs some 200 employees who perform shift work at its site in North Ryde, New South Wales.

2.Employees currently perform shift work under three rostering arrangements, which are permitted by clause 12 (Shift Patterns and Rosters) of the Agreement.

· Roster 1 – 24 hour, 6 day roster
· Roster 2 – 24 hour, 7 day roster
· Roster 3 – 8 hours, 5 day roster

3.The current approach by AstraZeneca to the accrual and deduction of personal/carers leave is summarised as follows:

Roster 1 - 24 hour, 6 day roster (Roster 1)
i) Employees employed to work regularly on Roster 1 work an average of 36 ordinary hours per week on the basis of an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Australian Workers' Union, The v AstraZeneca Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FWC 4660
Decision Date: 8 AUGUST 2018

CaseChat Overview and Summary

The Australian Workers' Union brought proceedings against AstraZeneca Pty Ltd, seeking to address a dispute concerning personal/carers leave under the National Employment Standards (NES). The case was heard in the Fair Work Commission, which has jurisdiction to resolve such employment-related matters. The union argued that AstraZeneca had not provided its employees with the requisite personal/carers leave entitlements as mandated by the NES, and sought various remedies to rectify the situation.

The legal issues before the Commission involved interpreting the NES provisions regarding personal/carers leave and determining whether AstraZeneca had complied with these statutory requirements. Specifically, the Commission had to consider the scope of the NES leave entitlements, the obligations of employers to provide such leave, and the appropriate remedies where an employer is found to have breached these obligations.

In its decision, the Fair Work Commission found that AstraZeneca had indeed failed to provide the required personal/carers leave entitlements to its employees, as stipulated by the NES. The Commission highlighted that employers are obligated to provide these leave entitlements to employees who qualify under the NES, and that the failure to do so constitutes a breach of the statutory provisions. The Commission ordered AstraZeneca to provide the unpaid personal/carers leave to the affected employees and to pay compensation for the breaches. Furthermore, the Commission directed AstraZeneca to take steps to ensure compliance with the NES in the future, including the provision of adequate training and education for its management staff regarding their obligations under the NES.

Orders