Court rules R&R akin to weekends when giving notice

A court has found that an employer on a fly-in, fly-out construction project was entitled to give notice to a worker that would run concurrently with his 10 days of mandatory "weekend-like" rest and recreation leave.

The Union challenged the employer's action, arguing it deprived the employee of his entitlement to leave, but the employer argued that in practical terms, “employees on the project were working a 33 day work cycle: 23 days on site and 10 days R&R leave off site". 

Federal Circuit Court Judge Justin Smith accepted that the employer acted within the law when it gave notice to the worker at the end of his 23 days’ work at the Barrow Island project and the beginning of his 10 days of R&R leave.

Judge Smith said the project's roster "compresses the period of work into the 23 day period and the non-work period into the 10 days R&R leave". He ruled that R&R leave "is unpaid leave", finding it analogous "to the weekend for a weekday worker".

The Court rules that "nothing in the plain text" of the Fair Work Act's s117 notice provision prevented the notice period running concurrently with R&R leave.

The ruling is important for the construction and mining sectors relying on compressed rosters.

[Short v CBI Constructors Pty Ltd [2017] FCCA 2442 (2 November 2017)]

Disclaimer: The above information is not legal advice but a very brief summary of some of the Court’s decision. You should contact NECA Legal (WA) Pty Ltd to discuss legislative obligations on 6241 6129 or email necalegalwa@ecawa.org.au.