Do you have to pay an employ­ee where their own con­duct has pre­vent­ed them from per­form­ing their job?

An employ­er might be for­giv­en for think­ing that where an employ­ee’s con­duct has ren­dered them unable to per­form their role, then there is no oblig­a­tion to pay them wages for the rel­e­vant peri­od of down­time. How­ev­er, this ques­tion is one which is now the sub­ject of a Full Bench deci­sion of the Fair Work Com­mis­sion in BHP Coal Pty Ltd t/​a BHP Bil­li­ton v Con­struc­tion, Forestry, Mar­itime, Min­ing and Ener­gy Union [2018] FWCFB 4148 (BHP Deci­sion).

Whilst the final out­come in the BHP Deci­sion aligns with what employ­ers would con­sid­er a com­mon-sense approach, the case was nev­er­the­less an inter­est­ing one.

Facts

Mr Gold­spring an employ­ee of BHP at Goonyel­la River­side Mine in Queens­land was employed in the Pre­strip Depart­ment at the Mine. His duties pri­mar­i­ly involved the on-site oper­a­tion of vehi­cles and mobile equip­ment. Under BHP’s stan­dard oper­at­ing pro­ce­dures Mr Gold­spring was required to hold a cur­rent Aus­tralian dri­ver licence.

Mr Gold­spring’s dri­ver licence was tem­po­ral­ly sus­pend­ed (again) due to dri­ving whilst sus­pend­ed for non-pay­ment of fines. The rel­e­vant Man­ag­er at the Mine deter­mined that Mr Gold­spring was unable to per­form his duties as he did not have a cur­rent dri­ver licence and there was no work for him to per­form. He could not return to work until his dri­ver licence was rein­stat­ed. In the mean­time, he could use all accrued annu­al leave and then go on unpaid leave. The total loss of pay as a con­se­quence of Mr Gold­spring’s enforced absence from work totalled around $6,713.33.

Mr Gold­spring or rather the CFM­MEU on his behalf, chal­lenged the non-pay­ment of these wages. Fol­low­ing an unsuc­cess­ful dis­pute res­o­lu­tion process as required under the rel­e­vant Enter­prise Agree­ment, the dis­pute was referred for arbi­tra­tion to the Com­mis­sion. The two issues for deter­mi­na­tion were: — 

• 1 Did BHP have an oblig­a­tion to pro­vide Mr Gold­spring with work oth­er than work involv­ing the oper­a­tion of vehi­cles or mobile equip­ment (dur­ing the rel­e­vant peri­od); and 
• 2 In all the cir­cum­stances should Mr Gold­spring have been paid for the rel­e­vant period.

Deci­sions of the Fair Work Commission 

The mat­ter orig­i­nal­ly came before Ash­bury DP, who found in favour of the employ­ee. BHP then appealed to the Full Bench com­pris­ing Hatch­er VP, Col­man DP and Lee C.

Two pro­vi­sions under the applic­a­ble Enter­prise Agree­ment were of par­tic­u­lar rel­e­vance. They were claus­es 4.1 and 4.4. Clause 4.1 stat­ed that employ­ees will per­form such tasks as rea­son­ably required by the com­pa­ny with­out any demar­ca­tion of duties while com­ply­ing with all legal and statu­to­ry oblig­a­tions… Clause 4.4 stat­ed that employ­ees were required to attend work in accor­dance with the ros­ter and work as direct­ed. An employ­ee would only be enti­tled to be paid for time worked unless tak­ing autho­rised leave.

The Full Bench con­sid­ered that in inter­pret­ing an award pro­vi­sion regard­ing com­pli­ance with the ​“rea­son­able instruc­tions of the employ­er or his rep­re­sen­ta­tive” the judg­ment of Dixon J in R v Dar­ling Island Steve­dor­ing and Lighter­age Com­pa­ny Lim­it­ed [1938] HCA 44 was appo­site, includ­ing the fol­low­ing passage.

“Accord­ing­ly, when the Award was framed, the expres­sion ​“rea­son­able instruc­tions” was adopt­ed in describ­ing the employ­ee’s duty to obey. What is rea­son­able is not to be deter­mined, so to speak, ​“in vac­uo”. The nature of the employ­ment, the estab­lished usages affect­ing it, the com­mon prac­tices which exist and the gen­er­al pro­vi­sions of the instru­ment, in this case an award, gov­ern­ing the rela­tion­ship, sup­ply con­sid­er­a­tions by which the deter­mi­na­tion of what is rea­son­able must be con­trolled”.

The Com­mis­sion adopt­ed the same approach to clause 4.1 of the Enter­prise Agree­ment. It not­ed that clause 4.1 required employ­ees to per­form the tasks required of them in com­pli­ance with ​“all legal and statu­to­ry oblig­a­tions”. It was implic­it in such words, that employ­ees must main­tain them­selves in a posi­tion to per­form the required duties, lawfully.

The Full Bench found that Mr Gold­spring could rea­son­ably be required to per­form his duties hav­ing regard to the nature of his employ­ment and estab­lished usages and com­mon prac­tices. He was also required to hold a dri­ving licence. In essence, Mr Gold­spring was not excused from his oblig­a­tions under clause 4.1 sim­ply because his licence had been sus­pend­ed, as the main­te­nance of his licence was a nec­es­sary inci­dent to the per­for­mance of his duties and a con­trac­tu­al term.

In its words: — 

“To reach a con­trary con­clu­sion would be to deprive the con­tract of employ­ment and clause 4.1 of the Agree­ment, of their effi­ca­cy, since it would mean that once an employ­ee puts them­selves in a posi­tion where they are inca­pable of per­form­ing their con­trac­tu­al oblig­a­tions, they can­not rea­son­ably be required to dis­charge them. This would lead to the con­se­quence for exam­ple, that an employ­ee with the same duties as Mr Gold­spring, if they attend­ed for work in an intox­i­cat­ed state, would effec­tive­ly be excused from the con­trac­tu­al oblig­a­tion to per­form those duties because of incapacity.”

The Full Bench found that while Mr Gold­spring might have been will­ing to per­form his job he was not ready and able to do so due to the sus­pen­sion of his dri­ver licence. There­fore, he had no con­trac­tu­al enti­tle­ment to pay­ment of wages since actu­al ser­vice was required for wages to be earned. 

Rel­e­vant­ly the Full Bench dis­missed the sub­mis­sion by the CFM­MEU that in com­ply­ing with the direc­tion from BHP not to attend work, Mr Gold­spring was actu­al­ly pro­vid­ing the required ser­vice. The Full Bench con­sid­ered that the ​“direc­tion” not to attend work was one made in recog­ni­tion of the fact that Mr Gold­spring was not able to pro­vide the required ser­vice. Such a direc­tion did not require autho­ri­sa­tion under the con­tract of employ­ment or the Enter­prise Agree­ment, where Mr Gold­spring was sim­ply not in a posi­tion to car­ry out his con­tract­ed duties. 

The Full Bench not­ed that in terms of the Enter­prise Agree­ment, Mr Gold­spring was not in a posi­tion to ​“work as direct­ed” as per clause 4.4. Clause 4.4 also con­firmed enti­tle­ment to pay­ment only arose in respect of ​”time worked” unless tak­ing autho­rised leave. Mr Gold­spring was at no time per­form­ing work over the rel­e­vant peri­od and there­fore was not enti­tled to pay­ment under the Enter­prise Agreement. 

The Full Bench not­ed that the posi­tion might be oth­er­wise where an employ­ee was ready, will­ing and able to per­form work but was wrong­ful­ly not allo­cat­ed work. How­ev­er, that was not the sit­u­a­tion here. 

Lessons for employers 

Whilst each case will need to be looked at on its own mer­its, the Full Bench deci­sion stands for the propo­si­tion, that gen­er­al­ly speak­ing, those employ­ees who cease to be in a posi­tion to pro­vide the ser­vice they are con­tract­ed to pro­vide, due to their own actions (or inac­tions), should not expect wages dur­ing the sub­sis­tence of the imped­i­ment to the pro­vi­sion of their services. 

The fact that an employ­ee in such a sit­u­a­tion, is ready, will­ing and able to per­form oth­er duties does not guar­an­tee an enti­tle­ment to wages, where the employ­er does not or is not able, to utilise such availability.