Industrial law
In Mining and Energy Union v OS ACPM Pty Ltd [2025] FCA 200 (4 March 2025), the Federal Court of Australia (Logan J) made multiple declarations in relation to clauses of the Black Coal Mining Industry Award 2020 (Award) concerning public holidays and shift lengths.
These declarations included that in relation to cl 29.3(a) of the Award, the words “provided that work will not be carried out on 2 of such holidays” refer to work not being carried out by the workforce, collectively, on two public holidays per year (order 1).This meant that OS ACPM Pty Ltd (OS), as the employer in question, was required to operate a roster of no more than 363 days per year (or 364 days in leap years) and provide for at least two public holidays per year on which maintenance employees, collectively, were not rostered to work (order 2).
In this respect, the Court rejected OS’s cross claim that the employer was only required to nominate which public holidays would be worked by employees pursuant to cl 25.2 if (and when) the employer and employees agreed on a date on which the employer would make the relevant nomination (order 4 and at [16]).The Court likewise rejected OS’s cross claim that cl 29.5(a) required an employer to “nominate two public holidays for each employee employed by the employer, being public holidays on which that employee will not perform work, which public holidays are not required to be the same for every employee employed by that employer” (order 4 and at [16]).
The Court further declared that in relation to cl 15.1(a) of the Award, the words “the ordinary hours of the shift” refer to the total length of the shift employees are rostered to work (order 3).In doing so, the Court rejected OS’s cross claim that cl 15.b and (c) of the Award refer to ordinary hours payable at ordinary rates and do not include rostered overtime payable at overtime rates. Likewise, the Court rejected OS’s cross claim that further and in the alternative, the reference to “[a] shift … longer than 10 ordinary hours” in cl 15.1(c) of the 2020 Award does not include shifts that are made up of 10 ordinary hours (payable at ordinary rates) and 2.5 hours of rostered overtime (payable at overtime rates) (order 4 and at [16]).
Consideration of appropriate penalty where not all facts agreed in penalty determination pursuant to Fair Work Act 2009 (Cth)
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Jemena Networks (ACT) Pty Ltd [2025] FCA 203 (17 March 2025), the Federal Court of Australia (Needham J) considered the appropriate penalty where not all facts were agreed on in a penalty determination.
In this case, Jemena Networks (ACT) Pty Ltd (Jemena) and Icon Distribution Investments Ltd (Icon) failed to consult with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Union) prior to amending the procedure for recording live work on or near a low voltage network and failed to establish a Safety Committee in contravention of the relevant enterprise agreement, s50 of the Fair Work Act 2009 (Cth) (FW Act) and ss47(1) and 47(2) Work Health and Safety Act 2011 (ACT) (at [5]).Jemena and Icon admitted to these contraventions (at [1]), and all parties submitted an agreed range of civil penalty for the purposes of a penalty pursuant to the FW Act (at [6]). However, the parties did not agree on all relevant facts (at [6]). This meant that the Court was required to consider the appropriate penalty in circumstances where the parties did not agree on all relevant facts. One example of a disputed fact was whether Jemena and Icon (trading as Evoenergy) introduced changes to the relevant “Live Work Procedure” without consultation in circumstances where Evoenergy knew that consultation and training were required (at [13]). The decision referred to witness evidence that stated that the changes had been implemented with an eye to mitigating certain protected industrial actions, and that the consultation time had been reduced because of the time pressures associated with the impact of the relevant bans (at [51]). The Court determined that the answer to the disputed fact was “Yes” (with a caveat) (at [135]). The Court found that Evoenergy was motivated to disregard the requirement of consultation because of imminent protected industrial action that would cause work on the relevant network to cease (at [140]). The Court processed other disputed facts throughout the judgment too. The Court then determined the appropriate penalty against Jemena and Icon pursuant to s546 of the FW Act by relying upon the usual principles, such as the Court’s requirement to exercise the discretion to impose penalties under s546 judicially – meaning fairly and reasonably having regard to the subject matter, scope and purpose of the legislation (at [139]).
