Construction, Forestry, Mining and Energy Union v Glendell Mining Pty Limited
Citation: [2017] FCAFC 35
At a glance
- Employees affected
- 1
What happened
the Applicant worked as an employee of Glendell Mining Pty Limited. His employment was governed by an enterprise agreement that provided him with five weeks (later six weeks) of paid annual leave per year, exceeding the National Employment Standards minimum of four weeks. Between January 2010 and January 2014, the Applicant took paid annual leave on six occasions when public holidays fell during those leave periods. On each such occasion, Glendell deducted one day from the Applicant's accrued annual leave entitlement for the public holiday. On another occasion, the Applicant took personal/carer's leave on a public holiday, and Glendell treated him as being on paid annual leave and deducted a day from his annual leave entitlement.
What was decided
The Full Court of the Federal Court dismissed an appeal by the Construction, Forestry, Mining and Energy Union. The union sought declarations that Glendell contravened s.44 of the Fair Work Act (which prohibits breaching National Employment Standards) by deducting public holidays from the employee's annual leave. The court found that s.89 of the Fair Work Act (which provides that if a public holiday falls during annual leave the employee is not taken to be on paid leave on that day) applies only to the minimum four weeks of paid annual leave prescribed by s.87 of the Fair Work Act. The supplementary entitlements beyond the minimum under the enterprise agreement are not protected by s.89.
What it means for employers
Where an enterprise agreement provides paid annual leave exceeding the National Employment Standards minimum, the statutory protections for public holidays apply only to the minimum amount. Employers may lawfully deduct public holidays from the supplementary leave entitlements provided by the enterprise agreement. However, employers should clarify this in enterprise agreement terms to avoid employee confusion.
What it means for employees
Employees with enterprise agreements providing more than the minimum paid annual leave should be aware that statutory protections for public holidays may not apply to the supplementary leave amounts. The situation depends on how the enterprise agreement is worded. Employees should seek union advice if public holidays are being deducted from their leave balances.
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https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2017/2017fcafc0035Want more cases like this?
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →