Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No. 2) [2016] FCA 727

Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No. 2) [2016] FCA 727

The Court found that the proper construction of cl 13.7 of the Hail Creek Agreement 2011, as determined by the Full Court, entitled employees to access paid sick leave for absences due to illness or injury. The respondent's refusal to provide this leave, or requiring employees to use annual or unpaid leave instead, was a contravention of cl 13.7 and thus s 50 of the Fair Work Act. All contraventions arose from a single course of conduct and, under s 557(1), were treated as a single contravention, warranting a civil penalty.

Jurisdiction
Australia
Judgment Date
22 June 2016
Procedural Posture
Civil Penalty Proceedings / Judgment After Remitter and Final Orders
Outcome
Civil penalty imposed; orders as per court; declaratory relief granted
Legal Topics
['enterprise Agreements' 'sick Leave Entitlements' 'fair Work Act – S 50' 'civil Penalty' 'interpretation of Industrial Instruments']
['industrial Law' 'employment Law'] ['enterprise Agreements' 'sick Leave Entitlements' 'fair Work Act – S 50' 'civil Penalty' 'interpretation of Industrial Instruments']

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Procedural Posture

Civil Penalty Proceedings / Judgment After Remitter and Final Orders

Legal Issues

  1. 1 ['Proper construction of sick leave clause in the Hail Creek Agreement 2011' "Whether respondent's employees entitled to paid sick leave for absences due to illness or injury" 'Whether refusal to provide paid leave contravened cl 13.7 and s 50 of the Fair Work Act 2009 (Cth)' 'Whether multiple contraventions are taken as a single contravention under s 557(1)' 'Appropriateness and quantum of civil penalty']

Ratio Decidendi

The Court found that the proper construction of cl 13.7 of the Hail Creek Agreement 2011, as determined by the Full Court, entitled employees to access paid sick leave for absences due to illness or injury. The respondent's refusal to provide this leave, or requiring employees to use annual or unpaid leave instead, was a contravention of cl 13.7 and thus s 50 of the Fair Work Act. All contraventions arose from a single course of conduct and, under s 557(1), were treated as a single contravention, warranting a civil penalty.

Court Disposition

Civil penalty imposed; orders as per court; declaratory relief granted

Orders

  • ['Declaration as to proper construction of sick leave clause in the Enterprise Agreement' 'Declaration of contraventions of cl 13.7 and s 50 of the Fair Work Act 2009 (Cth)' 'Civil penalty of $24,000 imposed on respondent' 'Penalty to be paid to applicant (CFMEU)' 'Enforcement of penalty stayed for one month to...