There are three key messages for employers from this case.
The employer, Mammoet Australia Pty Ltd (Mammoet), was engaged to perform construction work for the Pluto Project at Karratha in the north-west of Western Australia. Mammoet’s employees were employed under the Mammoet Australia Pty Ltd Pluto Project Greenfields Agreement (Greenfields Agreement). In December 2009, the parties commenced bargaining in relation to a proposed new enterprise agreement.
In April 2010, Mammoet received notice that crane and forklift operators intended to take protected industrial action by stopping work for a period of 28 days. In response, Mammoet threatened to impose a 28 day lockout following the stop work period, and withdraw the provision of camp accommodation to crane and forklift employees.
The Construction Forestry Mining and Energy Union (CFMEU) brought a claim against Mammoet on behalf of the crane and forklift employees, alleging that:
Mammoet submitted that the provision of accommodation to the crane and forklift employees was payment for the performance of work. Accordingly, the withdrawal of accommodation:
Lucev FM dismissed the CFMEU’s application, finding that Mammoet had no case to answer in relation to the allegations of adverse action and breach of the Greenfields Agreement.
The CFMEU argued that the provision of accommodation was not a “payment” to its employees within the meaning of the FW Act, as it did not form part of the remuneration arrangements for the crane and forklift employees.
Lucev FM preferred Mammoet’s position, finding that:
As the alternative to the provision of accommodation was the payment of LAFHA, Lucev FM held it would be illogical to find one was remuneration and the other was not. Instead, Lucev FM found that the LAFHA and accommodation were alternative forms of entitlement provided to employees working away from home.
Lucev FM found that during the period of industrial action, the FW Act prohibited Mammoet from providing accommodation to the crane and forklift employees and effectively authorised the withdrawal of accommodation. Accordingly, a failure to provide the accommodation could not constitute adverse action, as actions authorised under the FW Act cannot constitute adverse action.
Lucev FM found that the FW Act prohibited payment to employees during a period of protected industrial action and the employer withheld payment, the employer could not then be found to be in breach of its obligations to make payments to employees under a collective agreement. Accordingly, as Mammoet was not lawfully able to provide accommodation to the crane and forklift employees during the period of protected industrial action, the CFMEU’s claim for breach of the Greenfields Agreement failed.