Tasmanian Water and Sewerage Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2025] FCA 39

Federal Court of Australia

Tasmanian Water and Sewerage Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2025] FCA 39 File number: NSD 1116 of 2024

Judgment of: LEE J

Date of judgment: 31 January 2025

Catchwords: INDUSTRIAL LAW – contested public holiday entitlements – where applicant employer seeks a declaration that shift workers are not entitled to the benefit of the public holiday entitlement under the TasWater General Employees (North Western Region) Enterprise Agreement 2021 – where applicant contends the public holiday entitlement only applies where a public holiday falls on a "rostered day off", where an employee's ordinary hours are structured to include such a day off – where applicant contends provisions of enterprise agreement and award are inconsistent – construction of industrial instruments – analogies to constitutional law and s 109 of the Constitution – where instruments to be given practical operation – whether provisions can be sensibly or fairly read together – where provisions inconsistent – declaration made PRACTICE AND PROCEDURE – order to transfer proceeding from New South Wales Registry to Tasmanian Registry pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) – desirability of selecting appropriate Registry

Legislation: Constitution s 109 Evidence Act 1995 (Cth) s 191 Fair Work Act 2009 (Cth) s 739 Federal Court of Australia Act 1976 (Cth) Pt VB, s 48

Cases cited: Airservices Australia v Crouch [2023] FWCFB 21 Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; (2020) 275 FCR 385 CEPU v Australian Postal Corporation [2012] FMCA 998 James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566 Maribyrnong City Council v Australian Municipal, Administrative, Clerical and Services Union [2019] FCA 773; (2019) 369 ALR 704 Shift Workers Case 1972 (1972) AR 633 Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54 WorkPac Pty Ltd v Skene (2018) 264 FCR 536