Construction, Forestry, Mining and Energy Union v Downer EDI Mining Pty Ltd

[2014] FWC 6263

[2014] FWC 6263

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union
v
Downer EDI Mining Pty Ltd
(C2014/1361)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 9 SEPTEMBER 2014

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]; cashing out of personal/carer’s leave.

[1] This is an edited version of a decision given ex tempore on Friday 5 September 2014. It concerns an application by the Construction, Forestry, Mining and Energy Union (CFMEU, the applicant) in relation to a dispute under the terms of the Downer EDI Mining Boggabri Enterprise Agreement 2014 (the enterprise agreement). The dispute concerns the rate at which the respondent employer is obliged to cash out personal/carer’s leave in accordance with s.5.3 of the enterprise agreement.

[2] A hearing was conducted on 5 September 2014. The applicant was represented by Mr K Endacott, and the respondent by Mr I Neill of Senior Counsel and Mr D Chin of Counsel.

[3] The dispute turns on the meaning of s.101 of the Fair Work Act (2009) (the Act).

[4] The undertaking that was given at the time of the approval of the enterprise agreement confirms that the calculation of the payment for personal/carer’s leave cashed out in accordance with clause 5.3 of the enterprise agreement is to be calculated in accordance with s.101 of the Act.

[5] The provisions of s.101 are clear and unambiguous. If an enterprise agreement includes a term providing for the cashing out of paid personal/carer’s leave by an employee, the term must require inter alia that the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has foregone.

[6] I find that the reference to ‘the full amount that would have been payable to the employee had the employee taken the leave that the employee has foregone’ is to the actual amount that would have been paid if the employee had taken the leave. In an enterprise agreement that would normally be what the enterprise agreement provides for. In the enterprise agreement that this dispute relates to that amount is the employee’s ‘Aggregated Annualised Wage, as defined in clause 3.1 of the agreement.

[7] Provisions of the Act have to be read in the context of the Act as a whole.

[8] The minimum standard for personal/carer’s leave in the National Employment Standards under s.99 of the Act is that personal/carer’s leave where taken is to be paid at the employee’s base rate of pay for the employee’s ordinary hours of work. As this is a minimum standard, employers and employees may agree to pay personal/carer’s leave at a higher rate, as has happened in this enterprise agreement.

[9] However, far from supporting the respondent’s case, that context reinforces the position put by the applicant. If it had been intended that the paid personal/carer’s leave cashed out under an arrangement provided for under s.101 was always to be at the base rate of pay it would have been very easy for the draftsperson to have used those words. The fact is that quite different words are used in section 101(c) when describing the minimum amount that must be paid out. This merely reinforces the difference between the two provisions.

Conclusion

[10] Personal/carer’s leave cashed out in accordance with s.5.3 of the enterprise agreement is to be calculated on the basis of the employee’s Aggregated Annual Wage, as defined in clause 3.1.

SENIOR DEPUTY PRESIDENT

Appearances:

K Endacott - Industrial Research Officer, CFMEU, Northern Mining & NSW Energy District

I Neill, Senior Counsel with D Chin of Counsel for the respondent

Hearing details:

Sydney

2014

5 September

Final written submissions:

4 September 2014

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