Remote workers' "weekend"

In a decision of particular significance for the mining and resources industries, the Federal Circuit Court in Short v CBI Constructors Pty Ltd [2017] FCCA 2442 has confirmed that a notice period could run concurrently with Rest and Recreation Leave provided under an enterprise agreement.

In this case, the employee had worked on a remote construction project. Under the relevant enterprise agreement, he was entitled to 10 days R&R leave following 23 days’ consecutive work. His employment was terminated at the end of a 23 day work cycle and he was paid in lieu of notice for a period of 2 weeks as per the Fair Work Act 2009 (Cth).

An issue arose as to whether the notice period to which the employee was entitled could run concurrently with his 10 days’ R&R leave. The employee unsuccessfully argued that the notice period could not run concurrently because he would then be deprived of his leave entitlement. The Court, instead, accepted the employer’s view that the R&R leave was part of the employee’s entire work cycle, being “analogous to the weekend for the weekday workforce”, and that no entitlement was lost.

The Federal Circuit Court distinguished R&R leave from other types of leave, in that:

• it cannot be postponed or paid out upon termination like annual leave
• it is unpaid and must be taken at a certain time off-site to enable recuperation
• the entitlement to take R&R leave in advance is limited; and
• certain paid leave could be taken concurrently with R&R leave.

The Court stated that the roster arrangement "is of significant practicality and utility given the fly-in and fly-out arrangements in the geography of the project". The Court held that:

• "nothing in the plain text" of the notice of termination provisions of the FW Act prevents notice of termination from including a period in which an employee is not working such as the period of R&R leave; and
• other authorities "do not support a universal proposition that notice of termination cannot be given concurrently with any period of leave".

Author:  Trent Sebbens, Partner.