Adriana Orifici, ‘Fly-In Fly-Out Workers Entitled to Accommodation while on Strike: Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd‘ (16 December 2013).
The High Court has unanimously allowed an appeal from the decision of the Federal Court of Australia in CFMEU v Mammoet Australia Pty Ltd. Several of Mammoet’s employees sought to engage in protected industrial action in relation to ‘fly in/fly out’ arrangements for mining workers in Western Australia. Mammoet notified the employees that it would no longer provide accommodation to them during the period of industrial action, alleging that it was obliged to do so under s 470(1) of the Fair Work Act 2009 (Cth), which prohibits ‘payment’ of employees during industrial action. On behalf of the employees the appellant union challenged Mammoet’s contention in the Federal Magistrates Court. Mammoet was successful before the Federal Magistrates Court, and Justice Gilmour of the Federal Court refused the appellant union’s application to have the appeal heard by a Full Court of the Federal Court. In interpreting s 470(1), the High Court ruled that the provision of accommodation at the site did not constitute a payment of money, nor was it provided in relation to non-performance of work during the strike period. The case will now be heard by the Federal Circuit Court of Australia.