Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION v ENDEAVOUR COAL PTY LTD [2013] FCCA 473
Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 – adverse action – alteration of employee’s position to his prejudice – reasons for adverse action not prohibited reasons – proximate cause of adverse action – not adverse action where step consensual.
INDUSTRIAL LAW – Fair Work Act 2009 transitional provisions – agreement-based transitional instrument – civil remedy provisions.
INDUSTRIAL LAW – Fair Work Act 2009 – personal/carer’s leave – precondition to entitlement.
INDUSTRIAL LAW – Fair Work Act 2009 – statutory construction – s.540(3) an exception to exclusion found in s.540(2).
Legislation:
Fair Work Act 2009, ss.55, 97, 107, 340, 341, 342, 351, 360, 361, 539, 540
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, items 2, 22, 23, 24 of sch.3, items 2, 16 of sch.16

Cases cited:
Kirk v Industrial Court of NSW (2010) 239 CLR 531
Australian Meat Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482
McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111
Blair v Australian Motor Industries Ltd (1982) 61 FLR 283
Childs v Metropolitan Transport Trust (1981) IAS Current Review 946
Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49
Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34
Greater Dandenong City Council v Australian Municipal, Administrative, Clerical & Services Union (2001) 112 FCR 232
Barclay v Board of Bendigo Regional Institute of Technical & Further Education (2011) 191 FCR 212
Purvis v State of New South Wales (2003) 217 CLR 92
Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251
Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697
Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 86 ALJR 1044
Klein v Metropolitan Fire & Emergency Services Board (2012) 208 FCR 178
Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326
Lewis Construction Co Pty Ltd v Martin (1986) 17 IR 122
Construction, Forestry Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) 140 IR 131
Finance Sector Union v ANZ Banking Group (2002) 120 FCR 107

Automotive, Foods, Metals, Engineering, Printing & Kindred Industries Union v Visy Packaging Pty Ltd (No 2) (2011) 213 IR 48

Applicant: CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Respondent: ENDEAVOUR COAL PTY LTD ABN 38 099 830 476
File Number: SYG 1373 of 2011
Judgment of: Judge Cameron
Hearing dates: 2, 3, 15 November 2011, 28 and 29 February 2012, 15 March 2012
Date of Last Submission: 15 March 2012
Delivered at: Sydney
Delivered on: 27 June 2013

REPRESENTATION

Counsel for the Applicant: Ms C. Howell
Solicitors for the Applicant: Mr A. Thomas, Construction, Forestry, Mining &…
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Details
Case
[2013] FCCA 473
Decision Date

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard a dispute between the Construction, Forestry, Mining & Energy Union and Endeavour Coal Pty Ltd. The core of the disagreement concerned the application of the National Employment Standards (NES) under the *Fair Work Act 2009* (Cth) (FWA) to transitional instruments, specifically from 1 January 2010, following the conclusion of a "bridging period."

The court was required to determine whether Endeavour Coal Pty Ltd had contravened provisions of the FWA by taking adverse action against an employee. This involved considering whether the employee possessed a workplace right, whether Endeavour Coal had taken adverse action against the employee because of the exercise or proposed exercise of that right, and whether the employer's actions were discriminatory based on protected attributes. The court also had to interpret the notice and evidence requirements for personal/carer's leave as stipulated in section 107 of the FWA.

The court reasoned that the NES, including section 107, applied to transitional instruments from 1 January 2010. It found that an employee's entitlement to personal/carer's leave constituted a workplace right under section 341 of the FWA. The court further determined that Endeavour Coal had taken adverse action against the employee, as defined by section 342, by requiring the employee to provide specific medical certificates for personal/carer's leave that were beyond the requirements of section 107(3) and potentially discriminatory under section 351. The employer's actions were found to be an attempt to prevent the employee from exercising their workplace right to take personal/carer's leave.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The effect of items 22(2) and 23 of sch.3 to the FW (TPCA) Act was that from 1 January 2010, when the “bridging period” concluded, the National Employment Standards under the FWA applied to transitional instruments. Section 107 of the FWA is part of the National Employment Standards and relevantly provides:107Notice and evidence requirementsNotice(1)An employee must give his or her employer notice of the taking of leave under this Division by the employee.(2) The notice:(a)must be given to the employer as soon as practicable (which may be a time after the leave has started); and(b)must advise the employer of the period, or expected period, of the leave.Evidence(3)An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:(a)if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or(b)if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or(c)if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).Compliance(4)An employee is not entitled to take leave under this Division unless the employee complies with this section.Modern awards and enterprise agreements may include evidence requirements(5)A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave. Part 3-1 of chapter 3 of the FWA provides for employees’ general protections. Division 3 of pt.3-1 provides for the protection of workplace rights and the exercise of those rights. Sections 340-342 of the FWA are found in div.3 of pt.3-1 and relevantly provide:340 ProtectionEmployees, employers, outworkers and outworker entities(1)A person must not take adverse action against another person:(a) because the other person:(i) has a workplace right; or(ii) has, or has not, exercised a workplace right; or(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or(b)to prevent the exercise of a workplace right by the other person. …341 Meaning of workplace rightMeaning of workplace right(1) A person has a workplace right if the person:(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; …342 Meaning of adverse action(1)The following table sets out circumstances in which a person takes adverse action against another person. Division 5 of pt.3-1 provides for other protections. Section 351 of the FWA is found in that division and relevantly provides:351 Discrimination(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.. …

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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