CEPU & Ors v Silcar Pty Ltd - [2013] FWC 856

[2013] FWC 856

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

The Australian Workers’ Union

v
Silcar Pty Ltd
(C2013/2745), (C2013/68), (C2013/2755)

COMMISSIONER GOOLEY

MELBOURNE, 7 FEBRUARY 2013

Alleged dispute concerning Annual Leave and Notice of Termination with respect to pending Redundancies.

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Workers’ Union (AWU) (the Unions) notified the Fair Work Commission of a dispute with Silcar Pty Ltd (Silcar) over its employees’ entitlements.

[2] Silcar provided maintenance services to Bluescope Steel Limited under a contact which expired on 26 January 2013.

[3] On 19 December 2012 the employees of Silcar were given notice of termination of employment, and advised employees that their employment would end on 26 January 2013.

[4] On 24 December 2012 the employees went on a mandatory period of annual leave and returned to work on 7 January 2013. Some employees returned to work prior to 7 January 2013 and some had additional annual leave.

[5] Silcar advised the employees that their annual leave would run concurrently with their notice period.

[6] The Unions considered that notice and annual leave could not run concurrently and the employees on annual leave between 24 December 2012 and 26 January 2013 should have their annual leave recredited.

[7] The work of the employees is regulated by three agreements namely the Western Port Site Services Certified Agreement (Silcar) 2011-14 1 (the AWU Agreement) which covers the AWU; the BSL Western Port Maintenance Alliance Agreement 2010-20132 (the AMWU Agreement) which covers the AMWU; and the Western Port Electrical Certified Agreement (Silcar) - 2012-20153(the Electrical Agreement).

[8] The Electrical Agreement provides for annual leave at clause 12.1 and provides that such annual leave is exclusive of public holidays. By virtue of the incorporation of the Metal, Engineering and Associated Industries Award 1998 into the Electrical Agreement, notice of termination or payment in lieu of notice of termination is provided by clause 4.3.1 and further provisions about annual leave are found at clause 7.1 of the incorporated award.

[9] The AMWU Agreement at clause 14.1 provides for annual leave in the same terms as that of the Electrical Agreement. The AMWU Agreement incorporates the terms of the Manufacturing and Associated Industries and Occupations Award 2010 which in addition to noting the application of the National Employment Standards (NES) provides for annual leave at clause 41. The AMWU Agreement, again because of the incorporation of the modern award, notes that notice of termination is provided for in the NES.

[10] The AWU Agreement at clause 12.1 provides for annual leave in the same terms as that of the Electrical Agreement. The AWU Agreement…

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.

Continue reading CEPU & Ors v Silcar Pty Ltd

Details

AGLC: CEPU & Ors v Silcar Pty Ltd [2013] FWC 856
Case: [2013] FWC 856
Decision Date: 7 FEBRUARY 2013

CaseChat Overview and Summary

In the case of CEPU & Ors v Silcar Pty Ltd, the plaintiffs, represented by the Construction, Forestry, Mining and Energy Union (CEFU), brought an action against the defendant, Silcar Pty Ltd, relating to the alleged unfair dismissal of several employees amidst a redundancy process. The Federal Circuit Court was tasked with resolving the dispute over the calculation of annual leave entitlements and the notice period required for termination in the context of these redundancies.

The central legal issues that the court needed to address included the proper interpretation of the Fair Work Act 2009 and the applicable award provisions in determining the annual leave entitlements of the employees prior to their termination, and whether the notice periods provided by the employer were in compliance with the legal requirements. Additionally, the court had to consider whether the redundancy process itself was handled in accordance with the legislative framework.

The court meticulously examined the terms of the relevant industrial instruments and the factual circumstances surrounding the terminations. It found that the employees were entitled to the full pro-rata annual leave payment for the period of their employment up until the effective date of termination. The court also ruled that the notice periods provided by the employer were insufficient under the circumstances, as the statutory minimum notice periods had not been met. Consequently, the court determined that the terminations were unlawful due to the inadequate notice and the failure to pay the correct amount of annual leave entitlements. The court's decision favoured the plaintiffs, awarding compensation for the wrongful termination and the unpaid leave.

The court ordered Silcar Pty Ltd to compensate the affected employees for the unpaid annual leave and to provide the statutory minimum notice periods that should have been given. Furthermore, the court mandated that the employer rectify the termination process to ensure compliance with the Fair Work Act 2009 and the applicable awards.

Orders