Construction, Forestry, Mining and Energy Union v Anglo Coal (Drayton Management) Pty Ltd  FCA 689
This case confirms that employees who cash out their personal leave must be paid the same amount they would have been paid if they had actually taken the leave. In the case, the terms and conditions of the employment of Anglo Coal’s employees were governed by an enterprise agreement that allowed employees to cash out their unused personal leave entitlements. In purported compliance with the terms of that enterprise agreement, Anglo Coal paid its employees their hourly rate for 8.5 hours for each day of leave they cashed out. This had the effect that 12.5 hour shift workers were paid less than what they would have been paid had the employees actually taken leave. Buchannan J held that the employer’s construction of the agreement was inconsistent with section 101(2)(c) of the Fair Work Act 2009 (Cth). His Honour preferred a construction of the enterprise agreement that required shiftworkers to be paid 12.5 hours for each day cashed out, which is the amount they would have been paid had they taken personal leave. The Court ordered the employer to back pay the employees accordingly. The High Court refused special leave to appeal the decision.