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

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.