Notification under section 130 by the Australian Workers' Union, New South Wales Branch, of a dispute with Elura Mines re non payment of union delegates and other matters [2002] NSWIRComm 50

Notification under section 130 by the Australian Workers' Union, New South Wales Branch, of a dispute with Elura Mines re non payment of union delegates and other matters [2002] NSWIRComm 50

The award expression concerning average rostered shift earnings had to be given its plain ordinary meaning in the context of the current 42 hour roster, and a calculation based on hours worked must use the actual hours worked rather than the historic 40 hour figure. Using 40 hours produced a higher hourly rate on leave than when working, an outcome the parties to the award could not have intended and which lacked industrial merit. The Annual Holidays Act 1944 did not alter the result because the dispute concerned the method of calculation, not the quantum of annual leave, and underground operators received award annual leave entitlements more favourable than the Act. The fairest...

Jurisdiction
Australia
Judgment Date
21 March 2002
Procedural Posture
Industrial Dispute Notification Under Section 130 of the Industrial Relations Act 1996 / Decision and Recommendation After Compulsory Conferences, Determining the Outstanding Issue by Agreement of the Parties
Outcome
The Commission accepted the Company's proposed calculation method, recommended no recovery of overpayments and no payment of shortfalls, and concluded the proceedings.
Legal Topics
['award Interpretation' 'annual Leave and Other Leave Payments' 'average Rostered Shift Earnings' 'underground Mineworkers' '12 Hour Shifts' 'overpayments and Underpayments']
['industrial Relations' 'employment Law'] ['award Interpretation' 'annual Leave and Other Leave Payments' 'average Rostered Shift Earnings' 'underground Mineworkers' '12 Hour Shifts' 'overpayments and Underpayments']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Industrial Dispute Notification Under Section 130 of the Industrial Relations Act 1996 / Decision and Recommendation After Compulsory Conferences, Determining the Outstanding Issue by Agreement of the Parties

Legal Issues

  1. 1 ['What is the correct divisor for calculating annual and other leave for underground shift workers at Elura Mine after the change to 12 hour shifts and an average 42 hour week.' 'Whether average rostered shift earnings should be calculated by reference to a 52 week period or the 8 week roster cycle immediately preceding leave.' 'Whether employees should repay overpayments or receive alleged underpayments arising from the payroll calculation error since the 1996 roster change.' 'Whether the Annual Holidays Act 1944 affected the award entitlement or method of calculation.']

Ratio Decidendi

The award expression concerning average rostered shift earnings had to be given its plain ordinary meaning in the context of the current 42 hour roster, and a calculation based on hours worked must use the actual hours worked rather than the historic 40 hour figure. Using 40 hours produced a higher hourly rate on leave than when working, an outcome the parties to the award could not have intended and which lacked industrial merit. The Annual Holidays Act 1944 did not alter the result because the dispute concerned the method of calculation, not the quantum of annual leave, and underground operators received award annual leave entitlements more favourable than the Act. The fairest...

Court Disposition

The Commission accepted the Company's proposed calculation method, recommended no recovery of overpayments and no payment of shortfalls, and concluded the proceedings.

Orders

  • ['The correct divisor for the purposes of annual and other leave for underground shift workers at Elura mine is 42 hours.' 'Average rostered shift earnings shall be calculated by reference to the 8 week roster cycle immediately preceding the leave to be taken.' 'No employee shall be required to pay back monies that...