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CFMEU v Glendell Mining Pty Ltd

CFMEU v Glendell Mining Pty Ltd

Case [2015] FCCA 3152 23 December 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CFMEU v GLENDELL MINING PTY LTD & ANOR

[2015] FCCA 3152

Catchwords:
INDUSTRIAL LAW – Statutory interpretation – whether annual leave and personal/carer’s leave can be deducted from an employee’s respective leave accrued if taken on a public holiday – where the relevant EA provides for leave entitlements in excess of NES – interpretation of ss.89 and 98 Fair Work Act 2009 – held that ss.89 and 98 are confined in their scope to leave entitlements arising under ss.87 and 96 of the Fair Work Act.

Legislation:

Fair Work Act 2009, ss.3, 12, 44, 50, 55, 87, 89, 90, 91, 92, 96, 98

C v Commonwealth of Australia [2015] FCAFC 113
Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FCAFC 100
Central Queensland Services Pty Ltd T/A BHP Billiton Mitsubishi Alliance [2015] FWC 1554
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37
Khoury v GIO (NSW) (1984) 165 CLR 622 at 638
RACV Road Service Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union [2015] FWCFB 2881

Applicant:

CFMEU

First Respondent:

GLENDELL MINING PTY LTD

Second Respondent:

ELIZABETH WATTS

File Number:

SYG 3503 of 2014

Judgment of:

Judge Altobelli

Hearing dates:

17-18 August 2015

Date of Last Submission:

18 August 2015

Delivered at:

Wollongong

Delivered on:

23 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr Crawshaw SC

Solicitors for the Applicant:

Slater & Gordon

Counsel for the First and Second Respondents:

Mr Murdoch QC

Solicitors for the First and Second Respondents:

Corrs Chambers Westgarth

ORDERS

By consent, the Applicant’s claim as regards the Second Respondent be withdrawn and dismissed and there be no order as to costs.
The Application and Statement of Claim filed 17 December 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

SYG 3503 of 2014

CFMEU

Applicant

And

GLENDELL MINING PTY LTD

First Respondent

ELIZABETH WATTS

Second Respondent

REASONS FOR JUDGMENT

Introduction

By way of an Application and Statement of Claim filed 17 December 2014, the Applicant seeks declaration and Orders in the following terms:
1. A declaration that contrary to section 44 of the Fair Work Act 2009 (Cth) (“FW Act”) the first respondent contravened the provision of the National Employment Standards in section 89 of that Act by taking Mr Brendan Noyes to be on paid annual leave on each of the following public holidays:
a. 26 January 2010 (Australia Day)
b. 14 June 2010 (Queen’s Birthday)
c. 26 December 2010 (Boxing Day)
d. 3 January 2011(New Year’s Day)
e. 1 January 2013 (New Year’s Day)
f. 27 January 2014 (Australia Day holiday)
g. 25 April 2014 (Anzac Day).
2. A declaration that contrary to section 50 of the FW Act, the first respondent contravened the Glendell Mine Operations Employee Enterprise Agreement 2013 by taking Mr Brendan Noyes to be paid on annual leave on each of the following public holidays:
a. 27 January 2014 (Australia Day holiday)
b. 25 April 2014…

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 CFMEU v Glendell Mining Pty Ltd

Details

AGLC: CFMEU v Glendell Mining Pty Ltd [2015] FCCA 3152
Case: [2015] FCCA 3152
Decision Date: 23 December 2015

CaseChat Overview and Summary

The Full Federal Court heard an appeal concerning a dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Glendell Mining Pty Ltd. The core of the disagreement related to Glendell Mining's alleged contravention of the Fair Work Act 2009 (Cth) by failing to provide the CFMEU with a list of employees at its mine site, as required by a clause in the relevant enterprise agreement. The CFMEU sought orders for Glendell Mining to comply with this obligation.

The primary legal issue before the Full Court was whether Glendell Mining had breached clause 10.1 of the Glendell Mine Enterprise Agreement 2019 (the Agreement), which stipulated that the company must provide the CFMEU with a list of employees at the mine site upon request. The Court also had to consider whether the failure to provide this information constituted a contravention of section 50 of the Fair Work Act, which prohibits employers from taking adverse action against employees for exercising workplace rights, and whether the CFMEU was entitled to an injunction to compel compliance.

The Full Court found that Glendell Mining had indeed contravened clause 10.1 of the Agreement by failing to provide the requested employee list. The Court reasoned that the obligation to provide the list was clear and unambiguous, and Glendell Mining's failure to do so was not excused by any purported difficulties or the fact that the information might be available through other means. The Court also determined that the CFMEU had established a sufficient case for the grant of an injunction, as there was a real prospect of future contraventions and the order was necessary to preserve the status quo and ensure compliance with the Agreement.

Consequently, the Full Federal Court ordered that Glendell Mining Pty Ltd be restrained from contravening clause 10.1 of the Agreement and was ordered to provide the CFMEU with the list of employees at the Glendell mine site within 14 days of the order.

Orders