Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36

HIGH COURT OF AUSTRALIA

CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

CONSTRUCTION FORESTRY MINING & ENERGY UNION APPELLANT

AND

MAMMOET AUSTRALIA PTY LTD RESPONDENT

Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36 14 August 2013 P26/2013

ORDER

1. Appeal allowed.

2. Set aside the orders of the Federal Court of Australia made on 14 August 2012 and, in their place, order that:

(a) the appeal from the Federal Magistrates Court of Australia to the Federal Court be allowed;

(b) the order of the Federal Magistrates Court made on 20 October 2011 be set aside; and

(c) the application be remitted to the Federal Circuit Court of Australia to be heard and determined according to law.

On appeal from the Federal Court of Australia

Representation

J K Kirk SC with T J Dixon for the appellant (instructed by Construction Forestry Mining & Energy Union)

S J Wood SC with C O H Parkinson for the respondent (instructed by Lander & Rogers Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd

Industrial law (Cth) – Payments relating to periods of industrial action – Where employer provided employees with accommodation under enterprise agreement – Where employees took "protected industrial action" within meaning of s 408 of Fair Work Act 2009 (Cth) ("Act") – Where employer ceased to provide accommodation to employees for duration of "protected industrial action" – Whether provision of accommodation a "payment to an employee in relation to the total duration of the industrial action" under s 470(1) of Act.

Industrial law (Cth) – Enterprise agreement – Whether employees entitled to accommodation under terms of enterprise agreement when not ready, willing and available to work.