FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v Glendell Mining Pty Limited [2017] FCAFC 35
Appeal from: CFMEU v Glendell Mining Pty Ltd & Anor [2015] FCCA 3152 File number(s): NSD 43 of 2016 Judge(s): SIOPIS, WHITE AND BROMWICH JJ Date of judgment: 28 February 2017 Catchwords: INDUSTRIAL LAW – appeal from a decision of the Federal Circuit Court dismissing an application seeking inter alia, declarations that an employer had contravened ss 44 and 50 of the Fair Work Act 2009 (Cth) (FW Act) – employer treated employee as being on annual leave or personal/carer’s leave on days that were public holidays – employee was working under an enterprise agreement that provided for an annual leave entitlement and personal/carer’s leave entitlement which exceeded those provided for in the National Employment Standards (NES) – whether ss 89 and 98 of the FW Act apply to the whole of an employee’s entitlements to annual leave or personal/carer’s leave respectively or only to the extent that those entitlements match the NES.
Held: appeal dismissed.
Legislation: Acts Interpretation Act 1901 (Cth) s 13(3), 15AB
Fair Work Act 2009 (Cth) ss 12, 40A, 43(1), 44, 50, 55, 61(1), 87, 88, 89, 90, 96, 97, 98, 115, 126, 199, 570
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27
C v Commonwealth of Australia [2015] FCAFC 113; (2015) 234 FCR 81
Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FCAFC 100; (2015) 231 FCR 298
Construction, Forestry, Mining and Energy Union v Glendell Mining Pty Ltd [2015] FCCA 3152
Director of the Fair Work Building Inspectorate v McCullough [2016] FCA 1291
Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 276; (2003) 135 FCR 306
IMF (Australia) Ltd v Sons of Gwalia Ltd [2005] FCAFC 75; (2005) 143 FCR 274
The Ombudsman v Moroney (1983) 1 NSWLR 317
X v Australian Prudential Regulation Authority [2007] HCA 7; (2007) 226 CLR 630
Date of hearing: 1 August 2016 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 140 Counsel for the Appellant: Mr S Crawshaw SC and Mr A Slevin Solicitor for the Appellant: Construction, Forestry, Mining and Energy Union Counsel for the Respondent: Mr J Murdoch QC and Mr S Meehan Solicitor for the Respondent: Corrs Chambers Westgarth ORDERS
NSD 43 of 2016 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Appellant
AND: GLENDELL MINING PTY LIMITED ACN 128 511 311
Respondent
JUDGE:
SIOPIS, WHITE AND BROMWICH JJ
DATE OF ORDER:
28 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SIOPIS J:
Mr Brendan Noyes is and was,…
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- Case
- [2017] FCAFC 35
- Decision Date
CaseChat Overview and Summary
The legal issues central to the appeal were whether sections 89 and 98 of the Fair Work Act applied to the entirety of an employee's annual leave and personal/carer's leave respectively, or only to the extent that those entitlements matched the National Employment Standards. Specifically, the court had to interpret whether the statutory provisions regarding public holidays and leave deductions were meant to apply to any leave, or only to the minimum leave entitlements specified in the NES.
The court considered the statutory language and structure, particularly sections 89 and 98, in the context of the National Employment Standards and the specific entitlements outlined in the enterprise agreements in question. The court concluded that sections 89 and 98 applied only to the portion of the leave entitlements that matched the NES, and not to any additional entitlements provided under the enterprise agreements. This interpretation was based on the plain meaning of the statutory provisions and the legislative framework surrounding the NES. The court found that the employer's deductions from the employee's leave entitlements were not in breach of the Act as they were limited to the NES-defined portions of the leave.
The appeal was dismissed, and no order for costs was made pursuant to section 570 of the Fair Work Act 2009 (Cth).
Orders
Orders of the court
1. The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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