Construction, Forestry, Mining and Energy Union (NSW Branch) v Eraring Energy re breach of award [2004] NSWIRComm 178

Construction, Forestry, Mining and Energy Union (NSW Branch) v Eraring Energy re breach of award [2004] NSWIRComm 178

Clause 10.42 applied only to Operators Eraring. Messrs Currington and Smith, while acting in APPO duties, remained Acting Operators and were not appointed Operators Eraring. Clause 15 entitled Eraring to direct higher grade work and required payment at the higher grade rate, but it did not confer the full status or conditions of appointment under the Matrix Agreement or annualised salary arrangements. Because cl 10.42 did not apply to them while acting, they were underpaid when Eraring paid them under the annualised 12 hour shift arrangements rather than the applicable general Award shift provisions.

Jurisdiction
Australia
Judgment Date
28 June 2004
Procedural Posture
Notification Under S 130 of the Industrial Relations Act 1996 and Small Claim Under S 379 of the Industrial Relations Act 1996 / Decision After Hearing Following Compulsory Conference and Attempted Conciliation
Outcome
Underpayment of wages found in the manner contended by the Union; appointment remedy declined; parties directed to prepare appropriate orders within 14 days.
Legal Topics
['award Interpretation' 'shift Work Payments' 'acting in Higher Grade' 'underpayment of Wages' 'disputes Procedure' 'local Agreement and Award Interaction']
['industrial Relations' 'employment Law'] ['award Interpretation' 'shift Work Payments' 'acting in Higher Grade' 'underpayment of Wages' 'disputes Procedure' 'local Agreement and Award Interaction']

Case Brief

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Procedural Posture

Notification Under S 130 of the Industrial Relations Act 1996 and Small Claim Under S 379 of the Industrial Relations Act 1996 / Decision After Hearing Following Compulsory Conference and Attempted Conciliation

Legal Issues

  1. 1 ['Whether cl 10.42 of the Eraring Energy Employees Consent Award 2002 applied to employees acting as Assistant Power Plant Operators on 12 hour shifts.' 'Whether Acting Operators were to be paid under the annualised salary arrangements or under the general shift work provisions of the Award.' 'Whether the Matrix Agreement prevented use of a relief pool or required appointment of an employee as an APPO.' 'Whether prolonged acting in higher grade created a new contract of employment or required appointment to the higher position.' 'Whether Eraring underpaid wages to Glenn Currington and Grant Smith.']

Ratio Decidendi

Clause 10.42 applied only to Operators Eraring. Messrs Currington and Smith, while acting in APPO duties, remained Acting Operators and were not appointed Operators Eraring. Clause 15 entitled Eraring to direct higher grade work and required payment at the higher grade rate, but it did not confer the full status or conditions of appointment under the Matrix Agreement or annualised salary arrangements. Because cl 10.42 did not apply to them while acting, they were underpaid when Eraring paid them under the annualised 12 hour shift arrangements rather than the applicable general Award shift provisions.

Court Disposition

Underpayment of wages found in the manner contended by the Union; appointment remedy declined; parties directed to prepare appropriate orders within 14 days.

Orders

  • ['The parties are directed to prepare appropriate Orders within fourteen (14) days of this decision.']