The Federal Court of Australia has made an important industrial relations determination, confirming that preparatory work taken before protected industrial action constituted unprotected industrial action.

In the case of CFMMEU (Union) v Boggabri Coal Operations Pty Ltd (Boggabri), the Court also authorised a deduction of pay from the employees involved in the unprotected preparatory work.

Background / facts

Boggabri’s employees were members of the CFMMEU (‘Union’) and were authorised to take protected industrial action in 2019. The group of employees included the second applicant to the proceedings, David Boxsell (‘Employee’).

All employees were issued with a memorandum notifying them that they were required to continue working as normal up until the time of the protected industrial action – this was relevant to the consideration of what was authorised by the employer.

The Employee was authorised to take protected industrial action across three days, for two hours at a time, on five occasions (the notified commencement times). The Employee then, as part of taking the protected industrial action, and before the notified commencement times performed “parking up and finishing” actions on his dozer, despite the directions issued within the memorandum.

On the basis of these actions, Boggabri deducted 4 hour’s pay from the Employee’s income on each day these actions were performed, pursuant to s 474(1)(b) of the Fair Work Act (FW Act) which provides that payments are not to be made to employees engaged in unprotected industrial action.

The Union and Employee (together, the Applicants) argued that it was wrong to deduct the Employee’s pay.

Findings and legal principles applied

Among their submissions, the Applicants argued under s 19(1)(a) of the FW Act that the Employee did not take industrial action before the notified commencement times, as there was no performance of work by him “in a manner different from that in which it is customarily performed”. In other words, he performed his “parking up and finishing” actions in the same way he normally performed them.

Justice Jagot did not accept this argument, setting out that protected industrial action can be taken under s 415 of the Fair Work Act, with the immunity conveyed under that section only applying for the periods commencing at the notified commencement times. Justice Jagot found there can be no protected industrial action taken before the notified commencement times.

The applicants also argued under s 19(2)(a) of the FW Act that as the actions were taken to secure the dozer, these actions must be taken to have been authorised by Boggabri, as they are actions to ensure safety.

Justice Jagot did not accept this argument, noting that the memorandum issued by Boggabri clearly stated “every employee who is going to participate in a stoppage must work as normal right up to the scheduled start of the stoppage”, and an example provided stated “if protected action is called for 8am and finishes at 10am, you must continue to work until 8am and be back in the PSI room by 10am”. Accordingly, Boggrabi clearly did not authorise any pre- stoppage actions.

Further, in her reasoning, Justice Jagot set out that to ascertain whether the Employee took (unprotected) industrial action is to contrast what work they would have normally performed in their work time during the periods in question, and the work that was in fact performed.

Justice Jagot considered it was immaterial that the Employee’s actions were steps he would normally take at the start and end of his breaks and shifts, as the protected industrial action did not coincide with the start and end of a shift or a break.

Accordingly, the Employee did in fact take unprotected industrial action by performing his “parking up and finishing” duties.

The Employee could have performed those duties after the notified commencement time.

Decision / outcome

The application was dismissed, and the deductions from pay for taking unprotected industrial action under s 474(1)(b) of the FW Act was upheld.

Implications for employers

This decision provides employers with certainty that preparatory actions taken prior to the notified commencement time of protected industrial action is considered to be unprotected industrial action.

As Boggabri did in the circumstances, it would be wise for employers to communicate with employees engaging in protected industrial action what their expectations are in relation to work to be performed before and after stoppages in order to clear up any confusion.

AMMA offers expert support with such communications, or, for support in responding to, and managing protected industrial action. For support or advice contact AMMA’s specialist workplace advisory team.