ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under the Coles Smeaton Grange (NUW) Regional Distribution Centre Enterprise Agreement 2014 – issue for determination is interpretation of wording found in clause 22.1 Personal Leave and subclause 22.1.2 of the Agreement ‘In the second and subsequent years, the leave shall be credited in advance on each anniversary date of the commencement of employment’ – whether wording of subclause 22.1.2 provides employees with an entitlement to 10 days paid personal leave on the anniversary of the commencement of their second and subsequent years of employment without deduction or adjustment on account of having been granted a period of unpaid leave during the preceding 12 month period – dispute arose when email was sent by the respondent’s Human Resources Manager to NUW – email advised that employees do not accrue any entitlements where unpaid leave of one week or more is taken – applicant submitted that this would allow for a negative personal balance to be recorded where an employee has exhausted their personal leave credited in advance and the employee has taken a period of unpaid leave – further submitted that periods of unpaid leave cannot create a negative personal leave balance as there is no caveat on the entitlement to the crediting of 10 days personal leave on each anniversary date following completion of the first year of employment – respondent submitted that the plain reading of the relevant subclause can only result in the conclusion that where an employee takes a period of unpaid leave, irrespective of the year of service, they do not accrue personal leave and where it is provided for in advance an adjustment must be made to account for the non-accrual of personal leave during a period of unpaid leave – wording of subclause provides no entitlement to accrual of paid personal leave when employee is on unpaid leave – crediting in advance of the annual entitlement of 10 days is still dependent upon 12 months service – Golden Cockerel considered – words are to be read as a whole and in context – Commission unable to accept that crediting of personal leave in advance in second and subsequent years of employment altered the basis upon which entitlement to the leave is provided – interpretation not supported by any evidence of an intended additional benefit provided by employer – when considering the wording in the Agreement in its entirety, the reference to ‘service’ having to be undertaken to accrue personal leave is not disturbed simply because the entitlement is provided in advance – unpaid leave is not service as per the Agreement – Commission does not consider the disputed wording provides the benefit claimed by the NUW – second paragraph in subclause 22.1.2 could benefit from improved drafting – application dismissed. National Union of Workers v Coles Group Supply Chain P/L
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