Construction, Forestry, Maritime, Mining and Energy Union v Carter Holt Harvey Woodproducts Australia Pty Limited

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) appealed against the decision of Deputy President Gostencnik, who ruled on 16 January 2018 in two matters, C2017/4529 and C2017/4791. The dispute centred around whether a period of employer response action in the form of a ‘lockout’ constituted service for the purposes of accruing annual leave under section 22 of the Fair Work Act 2009 (Cth). The appeal was heard by the Full Bench of the Fair Work Commission.

The primary legal issue before the court was the interpretation of section 22 of the Fair Work Act 2009 (Cth), which mandates the accrual of annual leave for employees. The CFMEU argued that the lockout period should count as service for leave accrual, while the employer, Carter Holt Harvey Woodproducts Australia Pty Limited, contended otherwise. The court needed to determine whether the lockout constituted 'service' as defined under the act.

The Full Bench of the Fair Work Commission found no error in Deputy President Gostencnik's decision. The court reasoned that a lockout, being an employer-initiated cessation of work, does not constitute service for the accrual of annual leave under section 22 of the Fair Work Act 2009 (Cth). The court held that the lockout was not a period of service because it was not a period during which the employees were actually working or available for work. Consequently, the appeal was dismissed, affirming the earlier decision.

The final orders of the court were that the appeals against the decisions of Deputy President Gostencnik were dismissed, and the original findings stood affirmed. The employer's position that the lockout period did not constitute service for annual leave accrual was upheld.