Fly-in fly-out workers who engage in industrial action, or whose employers take action against them, must be locked out of their accommodation and prevented from using charter flights under the Fair Work Act, according to a recent Federal Magistrates Court decision with serious ramifications for the mining industry.
The Electrical Trades Union has called for the removal of FWA provisions that not merely allow, but require employers to revoke accommodation and charter flights in the event of industrial action by either side, leaving workers without shelter or the means of leaving mining camps.
A decision by the Federal Magistrates Court in October last year in a case brought by the CFMEU found that the company Mammoet was permitted to withdraw accommodation from striking employees because accommodation amounted to remuneration. Indeed, the magistrate, Toni Lucev, found that the company was actually prohibited from providing accommodation by the Fair Work Act, which employer groups claim is too pro-union.
The law firm Mallesons, which acted for the company, discussed the judgment in a recent note for employers.
The decision means that, in disputes where payment of remuneration is prohibited, workers in fly-in fly-out camps will be locked out of their accommodation and prevented from leaving via company charter flight, even if employers have initiated the dispute by locking staff out of a workplace. Critically, even if an employer wishes to allow employees to continue to live in accommodation provide by the employer while a dispute continues, or to fly them out, they are prevented by the Fair Work Act.
The ETU notes in its submission to the government’s Fair Work Act review that “at many mines, and indeed the construction camps that construct those mines, there is no local accommodation or, where there is, the cost of accommodation is extreme. Similarly, many mines are accessible only via charter flight.” However, “during employer industrial action, employers are prohibited from providing Accommodation Rights,” seriously skewing the bargaining process in favour of employers.
The House of Reps committee on regional Australia, chaired by Tony Windsor, is currently conducting an inquiry into fly-in fly-out practices and last week held hearings in central Queensland. Last week, the inquiry heard that demand for labour was so intense that McDonald’s was considering using a fly-in fly-out workforce for an outlet in the town of Moranbah.
Excellent. Glad you’re back Bernard.
Yes, while this seems an unexceptional interpretation of the legislation its application to fly in fly out is interesting.
Unfortunately neither this report nor Mallesons Stephen Jacques’ case note gives the case citation, which I think is poor from a law firm. Anyway, it is:
CFMEU v Mammoet Australia Pty Ltd [2011] FMCA 802 (20 October 2011).
I can’t help thinking of the law relating to “Duty of Care”. If say they lock out people and there is no accommodation or way in which they can return for out back area then if something happens to that person does it automatically mean that the company breached their duty of care? Just asking.
No one seems to have considered the obligations of the employer under OHS legislation to ensure the health safety and welfare of its employees and contractors.
Locking someone out of their home in a remote, harsh environment when they also lack the ability to readily leave or find alternative accommodation would seem to give rise to just a few issues on the OHS side.
What happens if a female employee sleeping rough was sexually assaulted, or a male employee sleeping rough was assaulted and robbed while their “homes” sit empty a short distance away with locked doors.
Competing legal obligations – I have not attempted an analysis but I am sure where there is a will a judge could readily find a 3rd law to apply – common sense. Except its not so common anymore.
I know that is a simplistic comment without proper legal analysis, and yes my examples are sexist because the guy could be sexually assaulted and the woman robbed, but whatever the black letter law I am sure the outcome could haev been avoided.
For a duty of care to arise harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be ‘fair, just and reasonable’ to impose liability.
Recall that the Fair Work Act prohibits employers remunerating employees while they are taking industrial action. A court is most unlikely to hold that it is fair, just and reasonable to make an employer liable for complying with the Fair Work Act.