In a recent case, BHP Coal Pty Ltd t/a BHP Billiton v Construction, Forestry, Maritime, Mining and Energy Union  FWCFB (27 July 2018), the Full Bench of the Fair Work Commission found an employee does not have to be paid if forced on leave because they cannot perform their role.
Mr Goldspring, an employee of BHP, was informed that he was not permitted to work for a period after he had his drivers licence suspended for one month due to driving whilst suspended. Mr Goldspring's work duties had primarily involved the on-site operation of vehicles and mobile equipment for which a driver's licence was required under the relevant safety regulations.
BHP told Mr Goldspring that as he was unable to perform his duties without a driver's licence, he would have to take accrued annual leave or go on unpaid leave until his licence was reinstated.
Mr Goldspring argued he should have been allocated alternative duties rather than being sent home. Evidence was given of several duties he could have performed. However, the Production Overburden Manager of BHP argued all crew had to be able to operate vehicles and there were limited duties Mr Goldspring could perform without a licence.
Further, BHP argued Mr Goldspring's inability to operate vehicles for the period of his licence suspension amounted to part performance of his employment contract, which it should not have to accept.
Mr Goldspring sought pay for the period he was sent home. At first instance, the Deputy President was of the view that BHP had no right to apply the common law principle of "no work as directed, no pay" in this circumstance. Inability to perform duties was held to not be the same as a refusal to perform duties. BHP appealed the decision. They argued BHP had a right at common law to refuse to accept part performance of the employment contract and should not be required to find other duties.
The Full Bench of the Fair Work Commission found that while Mr Goldspring was "ready and willing" to work in accordance with his employment contract, he was not "able" to. Therefore, the Full Bench held he had no entitlement to payment of wages.
The Full Bench provided that the Deputy President's approach at first instance, if correct, 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. That is obviously not correct".
Key issues for employers
This case demonstrates that as part of the work-wages bargain between employee and employer, an employee must be ready, willing and able to perform their duties under the employment contract.
There is no obligation on the employer to find an employee alternate duties where the employee has placed themselves in a situation where they are unable to work as directed or perform their ordinary duties. In this situation, the employer may be able to direct the employee to return home, and may not have to pay them for this period.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.