Keane: when a lock-out means locked out from work and home
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.
“Duty of Care” is the big one, Delerious. Any place that’s “fly in fly out” is probably not going to be livable without company accommodation. Some of these are not going to be survivable either. There are places in the Pilbara that regularly go above 40C in the summer.
So what’s going to happen if any striking workers get locked out of their unit and die of heatstroke or dehydration?
I have responded to the concerns about duty of care but it’s been held up in moderation since 3:11 pm.
Not carefully enough Gavin apparently…
H. R. Nicholls Society has another win!
It could be said that these style of interpretations and judgements are the result of the diputes going before the general civil legal system rather than through a properly constructed Arbitration and Conciliation court process.
I’m not sure that cases in industrial law need be heard by a specialised tribunal any more than any other area of law. The decision is unexceptional, and if it were heard by a specialised industrial tribunal it would be unlikely to have jurisdiction to consider Delerious’ point.
As it turns out, CFMEU v Mammoet Australia Pty Ltd was decided by Federal Magistrate Toni Lucev who practised in industrial law before joining the bench.
Et tu, Graham Dent? Also held up in moderation, it seems.
The Model Work Health and Safety Bill would establish a primary duty of care for the health and safety of workers ‘while the workers are at work in the business or undertaking’. So the duty wouldn’t extend to workers’ time off, and I expect similar findings would be made under the Occupational Safety and Health Act 1984 (WA) and other current State Acts.
I expect the simplest solution would be to amend the Fair Work Act 2009 (Cth); recall that this issue is being given prominence in the review of the Act.
Gavin \;
All three points in relation to ‘duty of care’ and The Fair Work I suggest are arguable before the courts with merit. The conflict between the two legislated laws and legal precendent will probably have to be adjudicated by a more surperior court.
So we will end up with the legal interpretation that the best money can buy.
This is just a technical flaw in the legislation that must be corrected. The prospect of workers being locked out of a remote camp is absurd. The company would simply breach the law and allow the workforce access to their camp and to charter flights.
Calm down everyone.
CFMEU v Mammoet Australia Pty Ltd was decided on 20 October 2011 and Mallesons Stephen Jacques doesn’t mention the prospect of an appeal in its case note. I would be surprised if it were appealed since Lucev FM’s decision seems unexceptional.
I agree with David Hand: this outcome is most likely to be corrected in an amendment.
David Hand - I must agree - this will be fixed up with a simple amendment.
How would they apply this to workers on an offshore oil rig?
Legislation trumps the common law duty of care, so I don’t understand why duty of care is seem as applicable.
More to the point would be each states’ Crimes Act concerning withholding the essentials of life (water, food, and shelter from deadly conditions). Usually Commonwealth legislation would dominate the state legislation, but this clause of the Fair Work Act is a civil remedy clause.
Also note that whilst an employer and employee may act reasonably, there is provision in the Fair Work Act for an unreasonable third party such as an industry lobby group to bring an action against both of the reasonable parties.
There’s plenty of scope for a state to exercise force majeure should hundreds of miners actually be locked out in the middle of the desert. It doesn’t take too much legal imagination to turn a mine from being a privately-owned workplace into something else. With that in mind, this is an exercise in legalism rather than an actual threat to the well being of miners.
What it does show is how increasingly out of touch with the world of modern work are Commonwealth public servants and politicians.
Just jumping through and sorry if this has been raised and I haven’t read the decision but in classifying accommodation as remuneration Lucev turns over 100 years of industrial law on its head. Previously remuneration had to be money, it couldn’t be rations or in kind. C’mon all you IR lawyers what’s the guts??
Lucev FM discusses ‘remuneration’ extensively in his judgement. If you want to question his judgement you should start by reading it.
I agree with David also. For a mining company to lock out employees from food and shelter would be political suicide. However it does raise the question if something as completely absurd such as this can be close to being implemented, then what else is in this legislation which is not so obvious. Is it going to be a case of suck it and see with every item in the industrial dispute laws?
Anomalies such as these are a bigger problem when legislation seeks to specify in detail outcomes for every eventuality rather than just stating more general principles for the relevant tribunal to implement.
A classic example is the tax legislation, and arguably Australia’s income tax legislation started to get very complicated when Parliament tried to legislate away the decisions of the Barwick High Court (1964–81) which were very much in favour of taxpayers reducing their tax, costing consolidated revenue millions.
This provision in the Fair Work Act was introduced into the Conciliation and Arbitration Act to stop employers paying strike pay, which they were being forced to pay by strong unions.