Ryan v Whitehaven Coal Mining Pty Ltd

Local Court

New South Wales

Medium Neutral Citation:	Ryan v Whitehaven Coal Mining Pty Ltd [2013] NSWLC 11
Hearing dates:	24/06/2013
Decision date:	26 July 2013
Jurisdiction:	Industrial
Before:	Magistrate Buscombe
Decision:	Applicant entitled to be paid $2,376.25.
Catchwords:	INDUSTRIAL LAW - statutory interpretation - payment for untaken annual leave upon resignation - whether leave to be paid at ordinary rate or with loading - Enterprise Agreement providing for entitlements to leave in accordance with Fair Work Act provisions but silent as to payment for untaken leave upon end of employment - National Employment Standards in Fair Work Act setting out minimum standards applying to employment of employees including payment of annual leave in s 90 - construction of s 90 - minimum standard where employee to be paid for untaken annual leave upon end of employment is payment of the amount the employee would have been paid had they taken the annual leave
Legislation Cited:	Acts Interpretation Act 1901 (Cth) Fair Work Act 2009 (Cth)
Cases Cited:	Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Texts Cited:	DC Pearce & RS Geddes, Statutory Interpretation in Australia, 7th edition (2011), LexisNexis
Category:	Principal judgment
Parties:	Stephen Edward Ryan (applicant) Whitehaven Coal Mining Pty Ltd (respondent) Australian Mines and Metals Association (intervenor)
Representation:	K Presdee for the applicant A Allegretto for the respondent A Peters for the intervenor
File Number(s):	2011/282007

Judgment

Introduction

1. The applicant Mr Ryan has brought an application against the respondent company under the Fair Work Act2009 (Cth) (Fair Work Act), claiming an unpaid amount of annual leave which he claims was payable to him upon his resignation from his employment. The application is brought under Part 4-1, Division 2 of the Fair Work Act. The dispute between the applicant and the respondent essentially concerns the rate of calculation of the unpaid annual leave.

1. The facts are not in dispute in these proceedings. The proceedings themselves have a rather unfortunate history. They were heard on 6 February 2012 by the late Magistrate G Hart, who was sitting as the Chief Industrial Magistrate. At the end of the proceedings that day his Honour reserved his decision. Sadly his Honour passed away prior to being in a position to deliver a decision in the matter.

1. The matter was referred to me from the defended list at the Downing Centre on 24 June 2013. The matter was essentially a rehearing before me in that the exhibits that were tendered before his Honour were tendered before me, and the parties made submissions. The transcript of the proceedings before his Honour was also tendered before me. No oral evidence was called before me.

1. It was apparent from the transcript of the proceedings before his Honour that his Honour granted to the Australian Mines and Metals Association leave to intervene and put submissions in the proceedings, primarily as to the appropriate construction to be given to the Fair Work Act. Given the history of the…