ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – appeal by Kentz against decision regarding application by CEPU to resolve a dispute in relation to notice of termination and rest and recreation provisions (R&R) of the Kentz (Australia) P/L Ichthys Onshore Construction Greenfields Agreement – grounds of appeal were that the Commission erred in exercising powers judicial in nature and outside remit of s.739 of FW Act – erred in mischaracterising R&R as akin to a leave entitlement that would be undermined by a period of notice of termination operating concurrently with it – erred in misconstruing clause 8.6(a) of agreement as preventing Kentz from providing a period of notice of termination in relation to a period of time including R&R days under predetermined work cycle – Full Bench granted permission to appeal in the public interest due to jurisdictional issue raised, broader implication for Ichthys agreements and error found in relation to characterisation of R&R – in relation to jurisdictional ground, Full Bench found Commission, in dealing with dispute under clause 18 of agreement, properly undertook role of private arbitration and was not engaged in the exercise of judicial power – appeal ground dismissed – in relation to the characterisation of R&R, Full Bench found Commission erred in characterisation of R&R in context of agreement and in the application of relevant authorities to R&R in that context – relevant element of first instance decision quashed, in particular findings that R&R a form of regulated and approved leave; notice of termination of employment unable to run concurrently with period of leave; pay in lieu of notice cannot assume employee would have been on unpaid leave for part of notice period and consequently reduce the amount of pay in lieu; and finding that in providing payment in lieu under agreement, notice could not be given such that it ran concurrently with a period of R&R – Full Bench determined relevant aspect of dispute itself and substituted its findings for those of Commission – held that R&R is properly characterised as the block of authorised non-work time which forms an integral part of the work cycle – employee whose employment terminated with payment in lieu would have worked the working hours established in their work cycle had their employment continued until the end of the minimum period of notice and would not have worked, or been paid in respect of, any R&R period which fell within the work cycle over that period of time – held no error by Commission with respect to clause 8.6(a) of agreement – appeal dismissed in relation to characterisation of clause 8.6(a). Appeal by Kentz (Australia) P/L against decision of Bissett C of 3 February 2016 [[2016] FWC 669] Re: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
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