Notification under section 130 by the Australian Workers' Union, New South Wales Branch, of a dispute with Elura Mines re non payment of union delegates and other matters [2002] NSWIRComm 50

Industrial Relations Commission of New South Wales

CITATION : Notification under section 130 by the Australian Workers' Union, New South Wales Branch, of a dispute with Elura Mines re non payment of union delegates and other matters [2002] NSWIRComm 50 NOTIFIER PARTIES : Australian Workers' Union, New South Wales Branch RESPONDENT Pasminco Australia Limited (Administrator Appointed) FILE NUMBER: 2983 of 2001 CORAM: Sams DP Industrial dispute - underground mineworkers - change to 12 hour shifts - payroll system not altered - method of calculating annual leave and other leave - relationship to Annual Holidays Act 1944 - interpretation of award provisions - principles of interpretation - intentions of the award makers. CATCHWORDS : Held, factual matters not contested - award provisions to be given their plain English meaning - employees receive higher hourly rate on leave than when working - award entitlements prevail over Annual Holidays Act - divisor for the purposes of average rostered shift earnings should be 42 hours, not 40 - average rostered shift earnings should be calclated by reference to 8 week cycle - industrial merit - repayment of overpayments not appropriate - company must wear its mistake - underpayments should not be paid - recommendations made. LEGISLATION CITED : Industrial Relations Act 1996 Annual Holidays Act 1944 Australian Workers' Union, New South Wales v New South Wales Technical and Further Education [2001] NSWIRComm 25 CASES CITED : Kellogg's Australia Pty Ltd v National Union of Workers, NSW Branch, 89 IR 391 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW v BHP Steel Long Products and Australian Workers' Union, NSW v BHP Steel Long Products [2000] NSWIRComm 164 HEARING DATES: 09/05/2001; 10/31/2001; 02/08/2002; 02/26/2002 DATE OF JUDGMENT: 03/21/2002