Construction, Forestry, Mining and Energy Union v Anglo Coal (Drayton Management) Pty Ltd

The Construction, Forestry, Mining and Energy Union (CFMEU) brought a claim against Anglo Coal (Drayton Management) Pty Ltd in relation to the cashing out of personal/carer’s leave for employees working shifts of varying lengths. The Federal Circuit Court of Australia found in favour of Anglo Coal, but the CFMEU appealed to the Federal Court of Australia. The crux of the appeal was the interpretation of a clause in the enterprise agreement concerning the cashing out of personal/carer’s leave and whether the leave should be expressed in terms of hours or days, particularly for employees working shifts of 8.5, 10.5, and 12.5 hours.

The legal issues before the court involved the proper construction of clause 21.11 of the Anglo Coal (Drayton Management) Pty Ltd Enterprise Agreement 2012 and whether the Federal Circuit Court had erred in its analysis. The court had to determine if the cashing out provisions of the Fair Work Act 2009 (Cth) and the enterprise agreement required payment to be made as if the leave was taken in terms of hours or days. Additionally, the court needed to decide if Anglo Coal had contravened section 50 of the Fair Work Act by failing to pay the full amount required by clause 21.11 of the enterprise agreement.

The Federal Court of Australia found that the Federal Circuit Court had erred in its analysis. The court held that for employees working 12.5-hour shifts, the proper construction of clause 21 of the enterprise agreement required that the entitlement to payment for leave cashed out be calculated as if the leave was taken in terms of hours, rather than days. Consequently, employees working 12.5-hour shifts had a greater effective entitlement to take leave when expressed in hours rather than days. The court also found that Anglo Coal had contravened section 50 of the Fair Work Act by not paying the full amount required by clause 21.11 of the enterprise agreement.

The appeal was upheld, and the orders of the Federal Circuit Court were set aside. The court made declarations regarding the proper construction of the relevant clause in the enterprise agreement for employees working 12.5-hour shifts and confirmed that Anglo Coal had contravened the Fair Work Act. The parties were directed to confer to determine if any further orders were necessary to give effect to the declarations.