Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor v Sunset Power International Pty Ltd trading as Delta Electricity [2018] NSWIRComm 1072

Industrial Relations Commission New South Wales Medium Neutral Citation: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor v Sunset Power International Pty Ltd trading as Delta Electricity [2018] NSWIRComm 1072 Hearing dates: 9 October 2018 Date of orders: 22 November 2018 Decision date: 22 November 2018 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC; Constant C; Sloan C Decision: (1) Leave to appeal is granted.

(2) The appeal is upheld.

(3) The decision of Stanton C in CFMEU Northern Mining and NSW Energy District v Sunset Power International Pty Ltd trading as Delta Electricity [2017] NSWIRComm 1074 is quashed.

(4) On the question of whether the TSP Loading is to be paid when an employee is absent from work on a public holiday, as a result either of:

(a) having been directed not to attend for work in accordance with clause 11.23 of the Enterprise Agreement; or

(b) taking personal/carer's leave pursuant to clause 19.7 of the Enterprise Agreement,

the answer is no.

(5) The parties are to confer regarding the quantum of deductions made to the TSP Loading paid to employees as a consequence of the employees' absences on public holidays.

(6) Matters 2016/168233 and 2016/168252 are adjourned to 7 December 2018.

(7) Liberty is reserved to any of the parties to have the matter re-listed on reasonable notice.

(8) If that liberty is not exercised by 7 December 2018 matters 2016/168233 and 2016/168252 will be closed administratively. Catchwords: APPEAL – decision made under dispute resolution provision in enterprise agreement made under Fair Work Act 1996 (Cth) – leave to appeal required – whether employees entitled to payment of a particular loading when they observe a public holiday or are absent due to sick leave on a public holiday – construction of enterprise agreement – principles to be applied – leave to appeal granted – appeal upheld – orders made Legislation Cited: Fair Work Act 2009 (Cth) Industrial Relations Act 1996 (NSW) Cases Cited: Appeal by DP World Brisbane Pty Ltd [2013] FWFCB 8557 Australian, Municipal, Administrative, Clerical and Services Union v Commonwealth of Australia (acting through and represented by the Australian Taxation Office) [2018] FWCFB 1170 Bennett v Commissioner of Police [2010] NSWIRComm 25 Branir Pty Limited v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 Commissioner of Police v Bennett [2011] NSWIRComm 17 Glen Cameron Nominees Pty Ltd (t/a Glen Cameron Trucking) v Transport Workers' Union of Australia [2018] FWCFB 3744 Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Tomvald v Toll Transport Pty Limited [2017] FCA 1208 Category: Principal judgment Parties: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (First Appellant)