New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union on behalf of Christine Clark v Uralla Shire Council [2019] NSWIRComm 1074

New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union on behalf of Christine Clark v Uralla Shire Council [2019] NSWIRComm 1074

Clause 29 of the Local Government (State) Award 2017 requires, as a prerequisite to treating positions as 'separate and distinct engagements' for award purposes, that the employee agrees in an informed manner to such treatment. In the absence of evidence that Ms Clark was informed or agreed to her two positions being so regarded for the purposes of cl 29, the Council cannot unilaterally deem them separate employments for leave accrual and entitlements.

Jurisdiction
Australia
Judgment Date
03 October 2019
Procedural Posture
Industrial Dispute / Interlocutory Determination and Directions
Outcome
Determination that Ms Clark's employment is not subject to cl 29 of the Award; parties directed to confer on leave entitlement arrangements, with further procedural orders.
Legal Topics
['awards and Agreements' 'long Service Leave' 'multiple Employment' 'award Interpretation']
['employment Law' 'industrial Law'] ['awards and Agreements' 'long Service Leave' 'multiple Employment' 'award Interpretation']

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Procedural Posture

Industrial Dispute / Interlocutory Determination and Directions

Legal Issues

  1. 1 ["Whether clause 29 of the Local Government (State) Award 2017 applies to Ms Clark's employment in two distinct positions with the Council" "Whether Ms Clark agreed to the 'separate and distinct employment engagement' as required by cl 29 for multiple employment treatment of her roles" "How Ms Clark's accrued leave entitlements should be treated if she resigns from her Cleaner position"]

Ratio Decidendi

Clause 29 of the Local Government (State) Award 2017 requires, as a prerequisite to treating positions as 'separate and distinct engagements' for award purposes, that the employee agrees in an informed manner to such treatment. In the absence of evidence that Ms Clark was informed or agreed to her two positions being so regarded for the purposes of cl 29, the Council cannot unilaterally deem them separate employments for leave accrual and entitlements.

Court Disposition

Determination that Ms Clark's employment is not subject to cl 29 of the Award; parties directed to confer on leave entitlement arrangements, with further procedural orders.

Orders

  • ["Pursuant to s 136(1)(a) of the Act, the parties are directed to confer to resolve how Ms Clark's accrued leave entitlements are to be treated, consistent with the Award, in the event she resigns from her Cleaner position." 'The matter is adjourned to 31 October 2019.' 'Liberty to the parties to have the matter...