Union has FIFO accommodation win in High Court

THE argument that accommodation equates to payment during an industrial dispute has been quashed by the High Court in a case against Mammoet Australia by the Construction, Forestry, Mining and Energy Union.
Union has FIFO accommodation win in High Court Union has FIFO accommodation win in High Court Union has FIFO accommodation win in High Court Union has FIFO accommodation win in High Court Union has FIFO accommodation win in High Court

Pluto LNG loading terminal, courtesy Woodside.

James McGrath

Mammoet had hired a number of staff to work on Woodside Petroleum’s Pluto project when, in April 2010, they notified the contractor of their intention to strike.

As part of the workers’ fly-in, fly-out wage conditions, Mammoet was required to either provide staff accommodation or make living-away-from-home penalty payments.

It chose the former option.

When the union notified Mammoet of the workers’ intention to strike during negotiations for a new enterprise agreement, Mammoet locked the workers out of their accommodation.

The CFMEU argued the decision in the Federal Magistrate’s Court and then the Federal Court on appeal, but was knocked back both times.

However, an appeal to the High Court by the CFMEU has borne fruit, with the court ruling that accommodation did not equate to payment.

Under the terms of the Fair Work Act, an employer is obliged to not pay an employee during a strike.

Mammoet had argued that since the accommodation was effectively payment, it had no choice under the act but to lock the workers out during the strike period.

The High Court, however, found that payment involved the transfer of money, not “simply the transfer of any economic benefit by an employer to an employee”

It also quashed Mammoet’s argument that the workers were not ready to work during the period, meaning they were not entitled to accommodation under the terms of their agreement.

The case will now be remitted to the Federal Circuit Court to be heard and determined according to law.

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