Construction, Forestry, Maritime, Mining & Energy Union v Boggabri Coal Operations Pty Ltd [2021] FCA 719

Construction, Forestry, Maritime, Mining & Energy Union v Boggabri Coal Operations Pty Ltd [2021] FCA 719

The second applicant's preparatory steps before the notified commencement times were not protected industrial action and were not authorised or agreed to by the respondent. The proper comparison was with the work he would customarily have performed at those times if not taking protected industrial action, which was continuing to operate the dozer. By parking up and making the dozer safe before the notified commencement times, he performed work differently from the customary manner and thereby engaged in non-protected industrial action. Section 474(1)(b) therefore required the respondent not to pay him for four hours on each relevant day, and the application had to be dismissed.

Jurisdiction
Australia
Judgment Date
29 June 2021
Procedural Posture
Fair Work Division Proceeding Concerning Alleged Improper Pay Deductions for Industrial Action / Originating Application
Outcome
Application dismissed.
Legal Topics
['industrial Action' 'protected Industrial Action' 'pay Deductions' 'employer Authorisation of Employee Action' 'fair Work Act 2009 (cth)']
['industrial Law' 'employment and Industrial Relations'] ['industrial Action' 'protected Industrial Action' 'pay Deductions' 'employer Authorisation of Employee Action' 'fair Work Act 2009 (cth)']

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Procedural Posture

Fair Work Division Proceeding Concerning Alleged Improper Pay Deductions for Industrial Action / Originating Application

Legal Issues

  1. 1 ['Whether steps taken by the second applicant before the notified commencement times of protected industrial action to park, secure and make safe a dozer constituted industrial action under s 19(1)(a) of the Fair Work Act 2009 (Cth).' 'Whether those steps were excluded from industrial action because they were authorised or agreed to by the employer under s 19(2)(a) of the Fair Work Act 2009 (Cth).' "Whether the respondent was required by s 474(1)(b) of the Fair Work Act 2009 (Cth) to deduct four hours' pay for each relevant day."]

Ratio Decidendi

The second applicant's preparatory steps before the notified commencement times were not protected industrial action and were not authorised or agreed to by the respondent. The proper comparison was with the work he would customarily have performed at those times if not taking protected industrial action, which was continuing to operate the dozer. By parking up and making the dozer safe before the notified commencement times, he performed work differently from the customary manner and thereby engaged in non-protected industrial action. Section 474(1)(b) therefore required the respondent not to pay him for four hours on each relevant day, and the application had to be dismissed.

Court Disposition

Application dismissed.

Orders

  • ['The originating application be dismissed.']