Re Australasian Meat Industry Employees' Union v SCI Meat and Paper Pty Ltd [1983] FCA 329; (1983) 72 FLR 220 Qld Q13 of 1983 Industrial - Conciliation and Arbitration; 6 IR 280 (7 December 1983)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION
And: S.C.I. MEAT AND PAPER PTY. LTD. [1983] FCA 329; (1983) 72 FLR 220
QLD Q13 of 1983
Industrial - Conciliation and Arbitration
6 IR 280

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Fitzgerald J.(1)

CATCHWORDS

Industrial - interpretation - entitlement of certain employees to award holidays.

Conciliation and Arbitration Act, s.110

Conciliation and Arbitration - Interpretation of award - Whether employee entitled to payment of certain Award holidays - Whether employer-employee relationship existed during period when Award holidays fell - Conciliation and Arbitration Act 1904 (Cth), ss 110 - Queensland Meatworks Industrial Agreement Award 1979, c11. 13(a), (b). Upon the true meaning and intent of the Queensland Meatworks Industrial Agreement Award 1979, a regular daily employee:

(a) who ceases work immediately prior to his employer's closing down of the employer's plant for an indefinite period; and

(b) whose engagement the employer terminates; and

(c) who is paid by the employer unused sick leave credits but is not paid accrued long service leave; and

(d) who is paid annual leave or proportionate annual leave at the time of such cessation; and

(e) who is re-engaged by his employer after the end of the said closing down (being a period of forty-seven days);
is not entitled to payment of such of those Award holidays set forth in cll. 13 (a) and (b) of the Award which fall on days within the said period of forty-seven days which would have been ordinary working days, that is to say, weekdays.

HEARING

Brisbane, 1983, December 7. 7:12:1983
APPLICATION.

Application pursuant to s. 110 of the Conciliation and Arbitration Act 1904 (Cth) for an interpretation of cll. 13(a) and (b) of the Queensland Meatworks Industrial Agreement Award 1979.

K. D. Dorney, for the applicant.

J. E. Murdoch, for the respondent.
Cur. adv. vult.

Solicitors for the applicant: Poteri, Woods & Co.

Solicitors for the respondent: Chambers, McNab, Tully & Wilson.
J.D.W.

DECISION

The entitlement to an award holiday under clause 13 or clause 14 of the Queensland Meatworks Industrial Agreement Award 1979 ("the Award") is dependent upon the existence at the date of the award holiday of an employer/employee relationship and upon the award holiday falling either on a work day during the currency of that relationship or during the period while the employee is absent from work, usually because he or she is enjoying a period of annual leave. There are exceptions, for example, under sub-clause 13(f), but none are suggested to be presently relevant.

The question posed assumed that although there was an employer/employee relationship, both prior to and subsequent to the period when the Award holidays fell, there was no such relationship during that period. I cannot find any intention to provide the affirmative answer sought by the applicant even on a liberal approach to the Award.

Accordingly, the Court declares that upon the true meaning and intent of the Award, a regular daily employee:

(a) who ceases work immediately prior to his employer's closing down of the employer's plant for an indefinite period; and

(b) whose engagement the employer terminates; and

(c) who is paid by the employer unused sick leave credits but is not paid accrued long service leave; and

(d) who is paid annual leave or proportionate annual leave at the time of such cessation; and

(e) who is re-engaged by his employer after the end of the said closing down (being a period of 47 days);

is not entitled to payment for such of those Award holidays set forth in clauses 13(a) and 13(b) of the Award which fall on days within the said period of 47 days which would have been ordinary working days, that is to say, week days.

The Court orders that there be no order as to costs.