FEDERAL COURT OF AUSTRALIA
Touhey v Salini Australia Pty Ltd [2022] FCA 55
ORDERS
WAD 165 of 2021 BETWEEN: GERALD TOUHEY
Applicant
AND: SALINI AUSTRALIA PTY LTD (ACN…
Keep reading for free
Create a free CaseChat account to read Touhey v Salini Australia Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2022] FCA 55
- Decision Date
CaseChat Overview and Summary
The court addressed several key legal issues, including whether the statutory provisions permitted the accrual of annual leave during periods of incapacity for work and whether the filing of a submitting notice precluded the respondent from contradicting the applicant's claims or default judgment. The court also needed to determine if the respondent was in default for any purpose and whether it could grant declaratory relief based on admissions made by the respondent. The court considered authorities and statutory interpretation principles to resolve these issues.
The court concluded that the filing of a submitting notice meant the respondent was not required to file a defence or otherwise participate in the proceedings, and thus, the court could not rely on r 5.23(2)(c) to grant a default judgment. However, the court found that it was open to it to grant declaratory relief based on the respondent's admissions under r 22.07 of the Federal Court Rules 2011. The court determined that the statutory provisions allowed for the accrual of annual leave during periods when the employee was receiving workers' compensation, as these periods were not excluded under the Fair Work Act. Consequently, the court made the appropriate declarations regarding the employee's entitlements.
The court ordered that the employee was entitled to payment for untaken accrued annual leave during the period when they were receiving workers' compensation, in accordance with the statutory provisions of the Fair Work Act. The court further clarified that the filing of a submitting notice did not preclude it from granting declaratory relief based on admissions made by the respondent.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I therefore consider it is open to me to grant the declaratory relief sought, provided I am otherwise satisfied that it is appropriate to do so.Consideration Mr Touhey as Salini's employee was entitled to accrue and take annual leave in accordance with Division 6 of Part 2-2 of Chapter 2 of the FW Act. This division constitutes part of the National Employment Standards, being the minimum standards applying to the employment of an employee, as s 61 of the FW Act provides. Section 44(1) of the FW Act provides that an employer must not contravene a provision of the National Employment Standards. It is a civil remedy provision. Section 87 of the FW Act, which falls within Part 2-2, relevantly provides as follows:Entitlement to annual leaveAmount of leave(1)For each year of service with an employer (other than periods of employment as a casual employee of the employer), an employee is entitled to:(a) 4 weeks of paid annual leave; or…Accrual of leave(2)An employee's entitlement to paid annual leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee's ordinary hours of work, and accumulates from year to year.… The effect of s 87 is that an employee is entitled to accrue four weeks' paid annual leave for each year of 'service' with an employer. The term 'service' is relevantly defined in s 22 of the FW Act as a period of service by an employee during which time the employee is employed by the employer, but does not include any 'excluded period'. Excluded periods are set out in s 22(2) and include any period of unauthorised absence, any period of unpaid leave or unpaid unauthorised absence (other than a period of community service leave under Division 8 or Part 2-2 or a period of stand down), or any other period of a kind prescribed by the regulations. None of the excluded periods are applicable in this matter. Importantly, time spent absent from work but whilst receiving workers' compensation payments are not excluded by s 22(2). Section 90, also in Part 2-2, addresses when payments for untaken accrued annual leave are to be made, and provides as follows:Payment for annual leave(1)If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period.(2)If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave. The effect of s 90 is that upon termination of employment, an employee is entitled to be paid the value of any untaken accrued annual leave equivalent to the amount the employee would have been paid had the employee taken the leave. If there is an applicable modern award or enterprise agreement which provides for payment of annual leave at a higher rate than the minimum rate prescribed by s 90(1), then that higher rate is the rate at which the untaken accrued annual leave must be paid upon termination per s 90(2). This construction of s 90(2) was confirmed in Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FCAFC 100; (2015) 231 FCR 298 at [38] (Tracey, Flick and Katzmann JJ).