international labor rights case law 2 (2016) 383-388 brill.com/ilarc
Commentary ∵
Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd: When is it permissible to take detrimental action against an employee who exercises a legal right to take leave? By Adriana Orifici, Research Fellow and PhD Candidate, Centre for Employment and Labour Relations Law, Melbourne Law School, University of Melbourne, Australia
Introduction
In Australia, an employee’s right to access legal entitlements to sick and carer’s leave is protected under law. The need to take sick and carer’s leave often arises at short notice and is therefore frequently inconvenient to an employer. In the case of Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76 (3 June 2015), the employer argued that it moved a worker—Alan McDermott—to a less lucrative roster because his attendance was unpredictable, not because he had exercised his legal right to take sick and carer’s leave. A majority of a Full Court of the Federal Court of Australia (FCA) accepted the employer’s argument and found its actions to be lawful. The case adopts a narrow reading of the antivictimization protections in the Fair Work Act 2009 (Cth) (FW Act). The reading is important because a majority of a Full Court of the FCA was prepared to find that these provisions protect an employee’s right to access a legal entitlement to leave but not the content, substance, or effect of that right when it is put into practice. It does not appear that the outcome of the majority’s decision satisfies Australia’s international obligations under relevant ratified conventions.
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The Case
The Federal Circuit Court (FCC) and FCA have jurisdiction over all civil mat- ters arising under the FW Act.1 The legislation includes antivictimization provisions,2 which protect employees from detrimental action when they exercise or seek to exercise a legal entitlement to take leave, such as sick or carer’s leave.3 They also, relevantly, prohibit an employer from taking detri- mental action against an employee on the grounds of one of thirteen protected attributes.4 Between December 2007 and September 2010, McDermott took a series of authorized absences in accordance with his legal entitlement to sick and carer’s leave. He did so because he had been ill or needed to care for his wife, who was unwell, and three young children. In September 2010, Endeavour Coal (Endeavour) moved McDermott from the weekend roster to the weekday ros- ter. McDermott found that the weekday roster was less lucrative and required him to work at inconvenient hours. McDermott, through the Construction Forestry Mining and Energy Union (CFMEU), sued Endeavour. Among other things, McDermott claimed that, by moving him to the weekday roster, Endeavour had subjected him to detrimen- tal action because he had taken his legal entitlements to sick and carer’s leave, or alternatively because of his family or carer responsibilities.5 At trial before the FCC, Endeavour produced evidence to show it had not moved McDermott to the weekday roster because he had taken leave. Rather, it argued it had done so because McDermott’s absences were inconvenient and expensive. The trial judge dismissed McDermott’s claim and accepted that the real reason for Endeavour’s actions were McDermott’s poor attendance “re- gardless of the justification.”6 McDermott appealed this decision to the FCA. A majority of a Full Court of the FCA did not identify an appealable error and so upheld the trial judge’s decision.
1 FW Act, §§ 562, 566. 2 FW Act, part 3–1. 3 FW Act, § 340. 4 FW Act, § 351. The protected attributes are race, color, sex, sexual orientation, age, physical or mental disability, marital status, family or carer responsibilities, pregnancy, religion, political opinion, national extraction, or social origin. 5 FW Act, §§ 340, 351. 6 CFMEU v Endeavour Coal, FCCA 473 at 74 (2013).
international labor rights case law 2 (2016) 383-388