Details  Created: 10 September 2020

The Industrial Magistrate has dismissed a claim for untaken paid annual leave under the GO INSHORE Port Hedland Agreement 2016 (Cth) (2016 Agreement) by a Master on an even time roster of 28 days on and 28 days off on the basis that annual leave was found to be taken during the off-duty period.

This dispute had been determined, in part, by the Industrial Magistrates Court dismissing the claimant’s claim as it related to his employment period covered by two previous industrial agreements, Go Inshore Port Hedland Agreement 2009 (Cth) and Go Inshore Port Hedland Enterprise Agreement 2013 (Cth) (2009 and 2013 Agreements). This decision can be read here.

The remainder of the dispute concerned the construction and application of cl 24 of the 2016 Agreement for the period of employment from May 2016 to August 2018.

The claimant claimed that the respondent failed to pay him untaken paid annual leave upon termination of his employment contrary to the Fair Work Act 2009 (Cth). He argued that he was entitled to four weeks annual leave for each year of service under cl 24 of the 2016 Agreement, and the respondent failed to provide him this payment by incorrectly describing part of the 28 days off (on the even time roster) as being paid annual leave.

The respondent denied the claim and said that on its proper construction, cl 24 of the 2016 Agreement operates to deem full-time employees to have taken accrued annual leave during off duty periods.

Industrial Magistrate Scaddan noted that the annual leave clause of the 2016 Agreement had been re-drafted and amended from its previous iterations. However, Her Honour found that the respondent intended that the existing annual leave arrangements under the 2009 and 2013 Agreements would continue in the same manner under the 2016 Agreement.

As the conclusion in the summary decision in respect of the 2009 and 2013 Agreements was that the taking of annual leave was intended to be incorporated into the off-duty period, Scaddan IM found her preferred construction of cl 24 in the 2016 Agreement was also that accrued paid annual leave was incorporated into the claimant’s off duty time on the even time roster. In reaching this conclusion, Her Honour also had regard to the industry context and purpose of the Agreement, as well as the natural and ordinary meaning of the clause.

The claim was dismissed.

The decision can be read here.