Servicing Australia Wide    | call: 08 8203 1700   |   email:

This is EMA’s pick of the most interesting and relevant cases reported in the last month. Please note that these are summaries only, and should not be relied upon in place of the full judgment. If you would like clarification on any of the judgments, or wish to know how a particular case may apply to a matter you currently have, please contact one of our consultants.

Construction, Forestry, Maritime, Mining and Energy Union v Peabody Energy Australia PCI Mine Management Pty Ltd[2019] FWC 4641 (2 September 2019)

Industry: Mining

Type: Dispute arising under an enterprise agreement

Summary: Employees were required by the Respondent to be at work 15 minutes prior to their start time to perform tasks such as filling their water bottles, accessing their lockers, and collecting their personal protective equipment before boarding a company vehicle five minutes later. Employees were not paid for this time. The Enterprise Agreement did not specify whether this time was to be classified as ‘work’.

Outcome: The Commission held that where an employer requires an employee to be at work at a specified time, and the employee is required to undertake tasks at that time beneficial to the employer (as opposed to private activities), that time is work. In this case, the Commission found that the pre-work activities were work and that employees were therefore entitled to payment for non-rostered overtime rates in accordance with the Enterprise Agreement.

Key notes: If an employee is required to be at work prior to their start time to perform any type of activity beneficial to the employer, that time will likely constitute ‘work’ and will therefore likely attract an entitlement to payment.

Director, Fair Work Building Industry Inspectorate v Devine Constructions Pty Ltd [2019] FCCA 2712 (25 September 2019)

Industry: Building and construction

Type: General protections

Summary: In 2014, a number of companies applied for the tender of work with the Respondent. Two of these companies were told that having an enterprise agreement would be required to tender for the work. One of these two companies entered into negotiations for an enterprise agreement and increased their offer for tender accordingly. This company won the contract.

Outcome: Disadvantaging a company for not having an enterprise agreement was found to have breached the general protections provisions of the Fair Work Act 2009 (Cth). Penalties were ordered against the Respondent itself, as well as its General Manager and a contracts administrator, each of whom were involved in the decisions. Penalties imposed on the Company, General Manager, and contracts administrator were $32,000, $3,000, and $3,000 respectively.

Key notes: Companies, when accepting tenders for work (in any industry), cannot base their decision on protected matters, such as the presence of an enterprise agreement. Additionally, the Courts will often order penalties against a Company and the individuals involved in any contravention, to act as a disincentive for future breaches.

Require further information/assistance?

If you require further information or advice, please contact one of our Consultants.