Payment entitlements during protected industrial action

Cases

Payment entitlements during protected industrial action

A full bench of the Fair Work Commission has made two important rulings on employees’ entitlement to payments during a period of protected industrial action.

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A full bench of the Fair Work Commission has made two important rulings on employees’ entitlement to payments during a period of protected industrial action.

[Full text of this case: Thiess Pty Ltd & Mt Owen Pty Ltd v CFMEU [2015] FWCFB 5530 (2 October 2015)]

This was an application to appeal a decision of the Commission in dealing with a dispute arising under the Mt Owen Mine Enterprise Agreement 2010. The first issue in dispute was whether the employers operating the mine were required to pay employees the “Safety & Production Allowance” provided for in the agreement to employees for pay weeks during which they were engaged in protected industrial action.

The full bench found cl 13.5 in the Agreement identified salaries which constituted compensation for “all time worked”. The allowance, together with the equipment care allowance and the tool allowance, was not part of compensation for “all time worked”. Payment of the allowance during a period of protected industrial action was not excluded by the agreement. The employers were obliged under terms to pay a fixed amount of the allowance each week notwithstanding protected industrial action.

The second issue in dispute was whether employers were required to pay salary to certain employees who attended for work but who were not provided with work during times in which notices issued by the union indicated employees generally would be undertaking protected strike action. The full bench found a strictly literal reading of the clause would support the contention that because employees did not perform work the clause required employees to lose payment for the contested period. However, this was found to lead to absurd results, and a more sensible and preferable interpretation was that non-performance of work referred to was actual non-performance for which the employee was responsible. In this instance, it was not the employees fault, but rather the fault of the employer treating them as if they were on strike. So the employees were entitled to payment for shifts for which they attended in accordance with the shift roster.

The union appeals were upheld.

Safety allowance payable


In finding in favour of the union and upholding the decision at first instance, the full bench said:

“… the Allowance was not referable to the performance of work in any particular period compels the further conclusion that the Allowance was not payable in relation to the time during which employees of Thiess and Mt Owen engaged in industrial action had the employee worked during that period. Payment of the Allowance was not prohibited by s.470(1). The Senior Deputy President’s conclusion on this score was correct.”

Employees presenting for work during protected action


In disagreeing with the decision at first instance, the full bench ruled that employees presenting for work during a period of protected industrial action were entitled to be paid:

“In particular, s.340(1)(a), which relevantly protects against adverse action an employee who does not exercise or proposes not to exercise a workplace right to participate in protected industrial action, presupposes that an employee who is entitled to take part in protected industrial action has the legal capacity to choose not to do so.

This is difficult if not impossible to reconcile with the putative inferred legislative requirement …

We do not consider that either s.414(1) or s.414(4) are capable of being read to mean that once the relevant notice is given, the industrial action must be taken. In the absence of express language to the contrary, a statutory prescription of a precondition to the taking of a particular action would not be read as meaning that satisfaction of the precondition required, as distinct from allowed, the particular action to be taken.

No such express language is present in s.414 …”

The bottom line: Protected industrial action creates  a difficult time for employers when some employees wish to continue working – as exemplified in this case.

Thiess Pty Ltd & Mt Owen Pty Ltd v CFMEU [2015] FWCFB 5530 (2 October 2015) 

See also: Protected industrial action 

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