Introduction

Under the Fair Work Act 2009 (the “FW Act”), employees can engage in protected industrial action when they are negotiating on a proposed enterprise agreement which is not a greenfields or multi-enterprise agreement. However, if an employee engages in unprotected industrial action, their employer is prohibited from paying them for the duration of the action on that day (or a minimum of four hours).

A recent decision by the Full Federal Court (the “FCAFC”) considered the question of whether certain actions taken prior to protected industrial action would constitute unprotected industrial action.

Background

The Appellants in this case were an employee who worked at the employer’s open cut coal mine in New South Wales, and his union. The employee and the union were covered by an enterprise agreement and were authorised to take protected industrial action on several occasions in 2019, including three occasions in 2019.

Before the nominated start times of each protected industrial action, the employee had taken a series of steps which he described as “parking up and finishing the process of working at the mine“. These included safely turning off his dozer, logging out of a tablet system and walking to a pick-up area to be transported to the administration. The Appellants contended that this was a usual process before stopping work at the coal mine, whereas the Respondent claimed that the employee had not been ordered to stop work at that time and was required to undergo productive mining works.

The Respondent, concluding that these were instances of unprotected industrial action, deducted four hours’ pay from the employee’s income for the three occasions. In their original application to the Federal Court, the Appellants claimed that the employee was entitled to declaratory and compensatory relief because the Respondent had contravened sections 50 and 323 of the FW Act by having failed to pay employee’s wages under the enterprise agreement. This application was dismissed by the Federal Court after it found that the employee had engaged in unprotected industrial action and the Respondent was therefore not allowed to make payments for those periods.

Outcome

The FCAFC agreed with the original decision of the Federal Court and rejected the appeal. The Appellant’s claims that “parking up and finishing” was a performance of work which was customarily performed was rejected, as the FCAFC considered that the stoppage was before protected action, which could not be said to be a customary occurrence. The FCAFC further held that at the time in which the employee was “parking up” he would have customarily been carrying out productive mining activities for which he was employed. The FCAFC referenced the FW Act’s definition of industrial activity as:

“The performance of work by an employee in a manner different from that in which it is customarily performed”

Ultimately the respondent was permitted to deduct four hours pay from the employee on each of the days of the protected action where he undertook unprotected industrial action by way of “parking up and finishing”.

Key takeaways

• Employers must not pay employees for any period of unprotected industrial action.
• Action taken by any employee that are different to what is “customarily performed” will be deemed as industrial action.
• Industrial which is taken outside of what is permitted as protected industrial action will be deemed to be unprotected industrial action.

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