Docking pay during Industrial action justified

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Docking pay during Industrial action justified

The Federal Court has upheld a decision by an employer to deduct pay from an employee who took a series of steps while operating plant immediately before the commencement of periods of protected industrial action.

The employee works as a dozer operator for Boggabri Coal Operations Pty Ltd.

In 2019, members of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), including the operator, were authorised to take protected industrial action for periods of two hours on the following dates:

  • 30 September 2019 – 8 am, 12 pm, and 4 pm

  • 2 October 2019 – 8 am

  • 3 October 2019

On each day, the operator took a series of steps, which he described as “parking up and finishing the process of working at the mine”. This included parking his dozer, logging out of a tablet system, turning the dozer off, and walking to a pick-up area to be transported to the administration area.

It was recorded that he had turned his machine off on 30 September at 7:55 am, 11:52 am, and 3:53 pm, on October 2019 at 7:52 am, and on 3 October 2019 at 11:51 am.

His employer deducted 4 hours of pay from him for each day on the basis that his non-working time constituted non-protected industrial action, consistent with the provisions of s 474(1) of the Fair Work Act 2009.

The operator readily admitted that if he had not been taking the two hours of protected industrial action on the three days, he would not have taken the steps he did and would have continued working as normal.

In the decision of Justice Jayne Jagot, she determined that the operator was taking unprotected industrial action, and therefore the employer was obliged to deduct the 4 hours. As she noted,

“in determining if (the operator) took industrial action before taking the protected industrial action on each relevant occasion, it is necessary to compare the work he would be customarily performing during his shift at those times and the work he performed on the relevant days during those times…That is, during the relevant periods before the protected industrial action, (he) was taking industrial action”.

Justice Jagot also highlighted the clear direction that the employer had given employees through a memorandum dated 26 September 2019, which stated, “every employee who is going to participate in a stoppage must work as normal right up to the scheduled start of the stoppage”. It was clear in Justice’s Jagot’s mind that the employee understood the requirements and that the employer had not authorised or agreed to the actions taken by the operator.

His application for repayment of the 4 hours for each occasion was dismissed.

CFMMEU v Boggabri Coal Operations Pty Ltd [2021] FCA 719

For questions about industrial action, payments during stoppages, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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