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Full decision here.

Introduction

A recent article posted by Julia Eastoe of Paul Horvath Solicitor brought my attention to a Full Bench of the Federal Court ruling on the meaning of a “day” in relation to an employee’s leave entitlements. This decision was decided on the basis of two judges agreeing, whilst the third judge not agreeing with the majority.

Apart from many, many pages of “hand-wringing” over what a “day” and “working day” meant, the outcome was that the NES is the overriding consideration in the matter, and the NES is expressed in “days”. So, it does not really matter what an award or EBA might say. In fact, the Fair Work Commission has been rejecting EBA’s for some time now where leave entitlements have been expressed in hours.

Whilst this Full Bench decision revolved around two workers who enjoyed a full-time 36 hourly week, working three 12-hour shifts, and ultimately determined that they are therefore entitled to 120 hours personal leave per year, Ms Eastoe has posited the opinion that this decision could extend to part-time workers.

That is, the Court determined that the employees in question were entitled to 10 days of 12 hours per day personal leave (ie 120 hours), etc; Ms Eastoe is of the opinion that this can equally applied to part-time workers, giving the example that a part-timer who works one 7.6 hour shift per week, would be entitled to 10 days (or 76 hours) leave, instead of the pro-rata entitlement of 2 days leave.

The matter has been referred to the High Court for final determination.

Commentary

This is a ridiculous situation in which the AMWU has been the litigant in both the Skene casual matter and now this. Whilst the union seems hell-bent in pulling apart the Fair Work Act (I argue re-writing history), it might better serve its manufacturing membership base by finding ways to keep jobs in Australia – instead of creating more reasons to offshore our manufacturing base.

In any event, two things need to happen:

  1. As with Skene, the federal government needs to amend the Fair Work Act and converting all entitlements to hours. This would be in line with most, if not all, payroll systems.
  2. With the changing employee landscape, it might be time to sit down to agree a set of definitions for employment types. For example:
  • Casual: Come and go employee, no consistent work provided or expected. A “fill-in” for seasonal highs or special circumstances that do not require an ongoing presence. The 25% loading should apply to all hours worked with a cap of 38 hours in a week or an average of 38 hours per week – after which overtime rates should apply.
  • Ongoing employee: sometimes called “permanent” employment. This is where both the employee and the employer have an expectation of security of employment/labour.
  • Part-time employees. The worst thing that the unions have achieved was to have part-time employees be paid overtime if they work more than their allocated hours. Overtime should only be paid (in my humble) after 7.6 hours in any day (presuming a 38-hour week) or for that matter where 38 hours are exceeded in any one week. If on a roster, over the period of the roster divided by the weekly hours.

Opinion

This is the most important (albeit ridiculous) decision since the Skene matter in which a casual employee was ruled entitled to leave entitlements (ie “double-dipping”). The federal government has since amended the Fair Work Regulations to nullify this (also ridiculous) decision.

Overall, I am appalled at the various attempts via the Fair Work Act to social engineer the workforce. Whilst Modern Awards are definitely a step in the right direction; provisions such as Bullying and so-called Adverse Actions are surplus to requirements, with other pieces of legislation more equipped to deal with such matters. The Bullying provisions have been an abject failure, as the no-win, no-fee lawyers cannot find a way to monetise the issue, whilst on the other hand, the Adverse Action claims are, in the main, an attempt by those same lawyers to circumnavigate the minimum employment periods required by the unfair dismissal laws (and don’t get me started on that subject).

I would love to hear your thoughts at greg@gregreiffelconsulting.com.au.