Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 136

FEDERAL COURT OF AUSTRALIA

Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 136 Citation: Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 136

Parties: CENTENNIAL NORTHERN MINING SERVICES PTY LTD ACN 101 509 111 v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and FAIR WORK COMMISSION

File number(s): NSD 870 of 2014

Judge(s): BUCHANAN J

Date of judgment: 27 February 2015

Catchwords: INDUSTRIAL LAW – where an enterprise agreement provides for payment of accrued but untaken annual leave at the end of employment – where rate of payment of untaken annual leave is referrable to ordinary hours worked rather than amount payable if leave was actually taken – whether s 90(2) of the Fair Work Act 2009 (Cth) requires payment be equivalent to the amount that the employee would have been paid if the employee had taken the annual leave INDUSTRIAL LAW – where enterprise agreement provides for retrenchment pay if employee retrenched before the age of 60 but not after – whether retrenchment provision in respect of employees aged over 60 is discriminatory on the basis of age and an unlawful term within the meaning of s 194 of the Fair Work Act 2009 (Cth) – whether, if unlawful, entire scheme for retrenchment pay must be severed from the enterprise agreement

Legislation: Black Coal Mining Industry Award 2010 (Cth) Coal and Oil Shale Mine Workers (Superannuation) Act 1941 (NSW), s 5(1) Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 2006 (NSW), s 3, Sch 1 cl [4] Evidence Act 1995 (Cth), s 191 Fair Work Act 2009 (Cth), ss 55, 55(1), 55(2), 55(4), 55(5), 55(6), 56, 86, 87, 90, 90(1), 90(2), 93, 94 194, 194(a), 195, 253, 253(1)(b), 346, 361 Centennial Northern Mining Services Enterprise Agreement 2011, cll 19.5, 19.6, 30, 30.5, 30.6, 30.8