Construction, Forestry, Mining and Energy Union v Glendell Mining Pty Ltd

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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

RACV Road Service Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union [2015] FWCFB 2881

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:

  1. Mr Brendan Noyes is and was,…

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Details
Case
[2017] FCAFC 35
Decision Date

CaseChat Overview and Summary

In the matter of Construction, Forestry, Mining and Energy Union v Glendell Mining Pty Ltd, the court was asked to determine whether certain provisions of the Fair Work Act 2009 (Cth) applied to the entirety of an employee's leave entitlements or only to the extent that those entitlements matched the National Employment Standards. The dispute arose from the employer's treatment of an employee's annual leave and personal/carer's leave on days that were public holidays, which the union argued contravened specific sections of the Act. The Federal Circuit Court dismissed the union's application, a decision which the union subsequently appealed.

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

I have had the advantage of having read the reasons for decision of White and Bromwich JJ. I agree with White and Bromwich JJ that the alternative argument advanced by the appellant should be dismissed. However, I have the misfortune to have come to a different view to White and Bromwich JJ in relation to the primary argument. I set out my reasons below.STATUTORY BACKGROUND It is necessary to set out some of the statutory background. Section 44(1) of the FW Act provides as follows:44(1)An employer must not contravene a provision of the National Employment Standards. Section 12 of the FW Act defines a large number of words and terms used in the FW Act. The term, “National Employment Standards”, is one such term. For the meaning of that term, s 12 directs the reader to s 61(3) of the FW Act. Section 61 of the FW Act provides as follows:61(1)This Part sets minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5).61(2)The minimum standards relate to the following matters:…(d)annual leave (Division 6);(e)personal/carer’s leave and compassionate leave (Division 7);…(h)public holidays (Division 10);…61(3)Divisions 3 to 12 constitute the National Employment Standards.(Original emphasis.) Section 89(1) of the FW Act is a provision of the National Employment Standards and so falls within the ambit of s 44 of the FW Act. No one contended otherwise. Section 89(1) appears in Div 6 of Ch 2 of Pt 2-2 and states:Public holidays 89(1)If the period during which an employee takes paid annual leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid annual leave on that public holiday. Section 87(1) of the FW Act reads as follows:Amount of leave 87(1)For each year of service with his or her employer, an employee is entitled to: (a)4 weeks of paid annual leave; or (b)5 weeks of paid annual leave, if: (i)a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or (ii)an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or (iii)the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees). It was common cause that during the period in question, Mr Noyes was entitled to be paid annual leave of five weeks, and later six weeks, pursuant to the award and enterprise agreements regulating his employment conditions; and that those periods of paid annual leave were, respectively, in excess of the minimum period set out in s 87(1)(a). The respondent accepted that it had deducted from Mr Noyes’ annual leave entitlement, the public holidays on which Mr Noyes was away from work, but contended that s 89(1) had no application to the impugned deductions it had made.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Clause 22.2.1 of the EAs entitles workers to three weeks paid personal leave per year, which is more than the 10 days per year to which employees are entitled under the NES (s 96). The reasoning set out above indicates that s 98 applies only to that portion of the personal/carer’s leave which matches the NES entitlement. It does not apply to the excess.Conclusion For the reasons given above, we consider that the appeal should be dismissed. Having regard to s 570 of the FW Act, there should be no order as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.