Full Federal Court confirms decision to withhold payment for unprotected industrial action

Full Federal Court confirms employer’s decision to withhold payment for engaging in unprotected industrial action

A full bench of the Federal Court has rejected an appeal by the CFMMEU, who had sought to recover amounts withheld from an employee whose employer believed had engaged in unprotected industrial action.

The facts of the case initially heard before Justice Jayne Jagot are relatively straightforward. The CFMMEU was involved in renegotiating an enterprise agreement with Boggabri Coal, who operate an open cut coal mine in regional NSW. The union was authorised under the Fair Work Act 2009 (the FW Act) to take protected industrial action at specific times for the purpose of promoting their bargaining claims. Those authorised times were 30 September 2019 – 8 am, 12 pm and 4 pm, 2 October 2019 – 8 am, and 3 October 2019.

On each of the three authorised days, an employee engaged as a dozer operator took a series of steps he described as “parking up and finishing the process of working at the mine”. This process involved parking the dozer, logging out of a tablet system, turning the dozer off, and finally walking to a pickup area to be transported to the administration section.

The employee acknowledged that these steps should only be implemented at the end of his shift and were outside the authorised times for protected industrial action.

The employer regarded these actions as ‘non-protected’ and deducted four hours’ pay for each occasion, arguing that they were required to do so under the provisions of s 474(1)(b) of the FW Act.

In the initial judgement, Justice Jagot agreed with the employer’s submission determining that, in the circumstances, the actions taken by the operator were not protected industrial action, and therefore the employer was compelled to withhold payment in accordance with the FW Act.

The appeal bench, comprising Justices Darryl Rangiah, David O’Callaghan and John Snaden, also unanimously agreed with the decision and rejected the union’s appeal.

The Full Bench highlighted that,

“Protected industrial action is a statutory mechanism designed to assist employees, employers and their representatives during periods of collective, enterprise-level bargaining. It is a simple enough concept…In order that they might attract that right, they must first clear some hurdles. If they do not do so, any action that is organised or taken runs the risk of being actionable”.

In this case, they noted,

“Customarily, (the operator) would only engage in the relevant `parking up and finishing’ activities when his work schedule required him to (or, on some occasions, when directed). Typically, that would occur at the end of his shift or whenever he was to take a scheduled break. On the occasion of present relevance, (the operator) did not engage in those activities because he was required or directed to; he engaged in them because he wanted to participate in the protected industrial action that the CFMMEU had organised…He was entitled to participate in that action; but not from a point in time prior to its advertised commencement”.

The Full Bench also rejected the union’s submissions that the employee’s ‘parking up and finishing’ activities were activities that Boggabri Coal ‘authorised and agreed to’ in a manner contemplated by s 192(a) of the FW Act. As they noted, when the employee chose to cease work, he was not required or authorised by his employer to do so but rather made his own choice for his own means. They noted that the written directions given to all employees as to what times they could engage in industrial action were unambiguous and that the operator chose to defy this direction.

As the learned judges summarised, “The primary judge was correct to characterise (the operator’s) `parking up and finishing’ activities as industrial action and to conclude that Boggabri Coal had correctly withheld from him the amounts that the appellants claimed”.

The appeal was dismissed. Boggabri Coal did not seek an order for legal costs relating to the appeal.

Construction, Forestry, Maritime, Mining and Energy Union v Boggabri Coal Operations Pty Ltd [2021] FCAFC 211 (18 October 2021)

For questions about unions, enterprise bargaining, protected and unprotected industrial action, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 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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