Following our media commentary a few months ago on the recent
decision of the Full Bench of the Fair Work Commission in Kentz
v CEPU  FWCFB 2019 in respect of employee's Rest and
Relaxation ('R&R') and termination entitlements,
including on 6PR Radio, we were asked to make some written comments
about the decision.
The Kentz work agreement governed entitlements of Kentz
employees who were involved in the construction of the Ichthys
Darwin liquid natural gas project. The Union had been expected to
use Commissioner Bisset's determination to support a claim for
approximately $1,000,000 of employee's unpaid entitlements
prior to the decision being overturned.
The Commissioner's original ruling had the effect that
employees would be entitled to be paid out for the period of their
R&R in addition to payment for a termination notice period,
even though the R&R period was unpaid. Resource sector
employers were concerned that the decision would have 'opened
the gates' for employees to claim back-pay contrary to the
industry's regular practice to provide notice of termination to
employees concurrently with R&R time.
Commissioner Bisset's Determination
The Union had previously argued before Commissioner Bisset that
Kentz workers who were immediately retrenched on their last day of
a four-week shift before commencing a week of unpaid R&R time
were underpaid by one week.
Commissioner Bisset held that:
" ... in providing payment in lieu of notice under
the Agreement, notice cannot be given such that it runs concurrent
with a period of R&R.""
Full Court Determination
The Full Bench of the Fair Work Commission quashed Commissioners
Bisset's finding and held that:
" ... The employee[s] 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.
 Further, we think the Commissioner's equation of
R&R with leave overlooked one important attribute of the
various forms of leave that is not shared with R&R –
R&R, an employee taking one of the various forms of leave is no
longer participating in the work cycle."
What does the ruling mean?
FIFO employee entitlements will be considered in light of their
own agreement or instrument, many of which contain similar
The Full Bench determined that there is no general principle
that a notice period cannot run concurrently with R&R time.
Employers and contractors should obtain appropriate legal advice
about required notice periods and employee entitlements, specific
to their circumstances to ensure parties compliance with employment
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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