We have now had just over a week to consider the effect of the
Mammoet Case (CFMEU v Mammoet  HCA 36).
In the Mammoet Case, the High Court unanimously allowed an
appeal from a decision of the Federal Court of Australia, which
held that the provision of accommodation to employees during a
period of 'protected industrial action' would have
constituted a 'payment' by their employer that was
prohibited by s 470(1) of the Fair Work Act 2009 (Cth)
Section 470(1) provides that if an employee engages in
'protected industrial action... the employer must not make a
payment to an employee in relation to the total duration of the
industrial action on that day'.
The High Court held that the provision of the accommodation
would not have constituted a 'payment... in relation to the
total duration of the industrial action.' It held that when s
470(1) speaks of 'payment' it means a payment in money and
not simply the transfer of any economic benefit by an employer to
an employee. The court held that the section was principally
concerned to prohibit the payment of 'strike pay'.
It will be a difficult task for employers to bring the notion of
accommodation within the meaning of a payment for the purposes of
Section 470(1). The relevant enterprise agreements and contracts of
employment will need to be reviewed and altered to achieve this
The Mammoet decision has serious consequences in the industrial
context, which will be difficult to overcome.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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