DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Construction, Forestry, Mining and Energy Union
v
BHP Coal Pty Ltd T/A BHP Billiton
(C2016/6024)

Application to deal with a dispute – Common law right to refuse to accept part performance of duties required under contract of employment – Interaction between common law right and Agreement provisions in relation to suspension and stand down – Agreement does not exclude common law right of employer to refuse to accept part performance of duties required under contract of employment – Common law right modified by terms of Agreement in relation to directions to perform work being reasonable – No general obligation to provide alternative work to employee unable to perform all duties required under contract of employment – Failure to properly invoke common law right to refuse to accept part performance of duties required under contract of employment – Employee entitled to be paid for period where employer refused to accept part performance on the ground that direction to perform particular work in issue was not reasonable.

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) applies under s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute arising under the Dispute Settlement Procedure in clause 37 of the BMA Enterprise Agreement 2012 (the Agreement). The Respondent is BHP Coal Pty Ltd T/A BHP Billiton (BHP/the Company). BHP supplies labour at the Goonyella Riverside Mine (the Mine) which is operated by the BHP Billiton Mitsubishi Alliance.

[2] The dispute relates to the manner in which BHP dealt with a member of the CFMEU, Mr Thomas Goldspring, for a period of three weeks between 23 August and 5 September 2016, when Mr Goldspring’s Queensland Driver License was suspended (the suspension period). Mr Goldspring is a Mine Employee and works in the Prestrip Department at the Mine. Mr Goldspring’s duties included the operation of vehicles and mobile equipment. As part of a safety and health management system developed in accordance with relevant legislation, BHP has implemented a Standard Operating Procedure at the Mine which requires that operators of vehicles and mobile equipment hold an Australian Driver Licence unless an exemption is granted by the Site Senior Executive (SSE).

[3] During the suspension period BHP directed that Mr Goldspring not attend for work and did not pay him. The CFMEU contends that BHP has stood Mr Goldspring down in circumstances where it was not entitled to do so and should have provided Mr Goldspring with work during the suspension period and paid him for that period. The CFMEU also contends that irrespective of the position at common law, the terms of the Agreement properly construed, obliged BHP to provide Mr Goldspring with work during the suspension period.

[4] BHP maintains that because Mr Goldspring was not able to operate vehicles or mobile equipment during the suspension period and did not seek an exemption from the requirement to hold a Driver License, he was ready and willing, but not able, to perform obligations under his contract of employment, as lawfully and reasonably directed by BHP. Accordingly BHP was under no obligation to accept part performance or to find alternative duties for Mr Goldspring during that period. Further, BHP contends that its decision not to accept part performance of obligations under Mr Goldspring’s contract of employment is in accordance with an established common law principle and does not equate to a stand down. As a result, Mr Goldspring was not entitled to be paid wages for the suspension period.

HEARING

[5] A jurisdictional objection initially pursued by BHP was withdrawn and it is not in dispute that the Commission is empowered to arbitrate the matter under the terms of the Dispute Settlement Procedure in clause 37 of the Agreement. Directions were issued for the filing of material and the hearing of the matter and the following questions for arbitration were agreed by the parties:

1. In all of the circumstances, did the employer have an obligation to provide to Mr Goldspring work, other than work which involved the operation of vehicles, or mobile equipment on site consistent with SOP (GRM SOP 0027), during the relevant period?

2. In all of the circumstances, should Mr Goldspring have been paid for the relevant period?

[1] For the purposes of the question for arbitration, the relevant period was the suspension period when Mr Goldspring was not paid for eight shifts that he would ordinarily have been rostered to work.

[2] A hearing was conducted in Mackay. The CFMEU was represented by Mr C. Massey of Counsel, instructed by Mr R. Anderson of the CFMEU. BHP was represented by Mr I. Humphries and Ms E. Mayr of Ashurst. The following persons gave evidence in support of the CFMEU’s application:

•  Mr Thomas Goldspring, employee and member of the CFMEU; 1

•  Mr Simon Royce West, employee and member of the CFMEU; 2 and

•  Mr Russell Miles Robertson, employee and member of the CFMEU. 3

[3] Evidence for BHP was given by the following persons:

•  Mr Scott Diefenbach, previously the Workpac Supervisor – Production Prestrip; 4

•  Mr Joshua Robert Towns, Superintendent – Production Analysis and Improvement; 5 and

•  Mr Bradley Wayne Holden, Manager of Production Overburden. 6

[4] Mr Goldspring and the witnesses for BHP were required for cross-examination and attended the hearing for this purpose.

EVIDENCE

The Safe Operation of Vehicles SOP and its application at the Mine

[5] The Coal Mining Safety and Health Act 1999 (CMSH Act) and the Coal Mining Safety and Health Regulation 2001 (CMSH Regulation) apply at the Mine. Section 42(c) of the CMSH Act imposes an obligation upon the Site Senior Executive (SSE) of the Mine to: “develop and implement a single safety and health management system [SHMS] for all persons at the Mine.”

[6] Section 76 of the CMSH Regulations states that a coal mine must have a standard operating procedure for using mobile plant equipment. In compliance with s.76 of the CMSH Regulations, the Standard Operating Procedure – 030.01 GRM SOP Safe Operation of Vehicles and Mobile Plant (Safe Operation of Vehicles SOP) has been brought into existence and forms part of the Mine’s SHMS. A failure to implement the SHMS, of which the Safe Operation of Vehicles SOP forms part, exposes the SSE to prosecution and penalty.

[7] The Safe Operation of Vehicles SOP in effect at the time the dispute arose, was appended to the Witness Statement of Mr Holden. 7 The stated intent of the Safe Operation of Vehicles SOP is to outline the requirements for the safe operation and parking of vehicles at the Mine. The SOP identifies the following as key hazards:

● Vehicle and pedestrian, vehicle and vehicle interaction;
● Uncontrolled movement of vehicles and mobile equipment;
● Vehicle or equipment failure; and
● Ineffective positive communication.

[8] Section 2 of the Safe Operation of Vehicles SOP provides that:

“All operators of vehicles and mobile equipment must hold a current Australian Driver license. Loss of license must be reported immediately to the Supervisor. Approval from the SSE or delegate is required for the Operator to continue to operate vehicles or mobile equipment on site.”

[9] According to Mr Holden, for an exemption to be granted by the SSE, a worker must complete an exemption form. The exemption form requires the worker to state the reasons an exemption from the SSE is required. After the exemption form is completed by a worker, it is required to be signed by the relevant Department Manager and then provided to the SEE for consideration and approval. Mr Holden tendered a copy of the exemption form.

[10] There was some conflict in the evidence about whether the requirement in the Safe Operation of Vehicles SOP for a current Driver Licence to be held, was new. According to Mr West, this aspect of the procedure was introduced in or around May 2016. Mr West also said that he did not recall the Company ever seeking to raise the issue of driver licences in enterprise agreement negotiations and is not aware of it ever being a requirement of employment that a worker at a mine have a driver licence.

[11] Mr Holden maintained that the Safe Operation of Vehicles SOP is not new and in support of this assertion tendered a copy of the SOP which came into force in May 2013, and contained the following provision:

“All drivers and operators of vehicles and mobile equipment must hold a full Australian licence…Loss of licence for any reason must be reported immediately to supervisors. Exemptions may be authorised to the licence requirements, by the SSE or delegate, by completion of 030F – Licence Exemption Request form.”  8

[12] In his statement in response, Mr West accepted that this provision of the SOP was not new, but pointed to the fact that the current version does not contain a reference to the exemption request form in the relevant paragraph. There was also conflict in the evidence about training in relation to the Safe Operation of Vehicles SOP. Mr Holden said that the Safe Operation of Vehicles SOP is mandatory for all workers at the Mine who operate vehicles of mobile equipment and that all workers must be trained in that SOP before they can operate vehicles or mobile equipment. After a worker receives training in an SOP it is recorded on their training transcript and the worker is required to undertake refresher training in relevant SOPs every five years.

[13] Mr West also said that the training referred to by Mr Holden would have at best, involved a short PowerPoint presentation and the details would not have been explained. Mr West also said that the training would not have identified a change in the application of the Safe Operation of Vehicles SOP or in the terms and conditions of employment for employees whereby they were required to produce a current Driver Licence in order to be passed out to operate mobile equipment.

[14] In response to evidence about the adequacy of training on the SOPs Mr Holden said that workers are trained in relevant SOPs prior to commencing a task which is the subject of the SOP. If a SOP is changed, workers are trained in the new SOP prior to the change coming into effect. According to Mr Holden, it is each worker’s responsibility to ensure that they understand and are familiar with the relevant SOPs at the Mine. All SOPs are available on an intranet site at the Mine which is available to all workers. Alternatively, SOPs can be obtained through a worker’s supervisor.

[15] Mr Holden tendered a copy of Mr Goldspring’s training transcript indicating that in accordance with usual procedure, Mr Goldspring was trained in the 2013 version of the
Safe Operation of Vehicles SOP in April 2013, before it went live in May 2013. Mr Holden also said that it is his experience that all workers at the Mine are required to produce their current Australian Driver Licence before they can be passed out or deemed competent to operate mobile equipment.

[16] Mr Goldpspring said that he did not recall anyone from the Company asking to see his Driver Licence or making a copy of it. In his statement in reply, Mr West said that he recalled being required to produce his Driver Licence to the Company but this was for identification in relation to his statutory qualification as a shot-firer and the handling of explosives and not as a condition of employment. Mr Holden tendered two photocopies of Mr Goldspring’s Driver Licence from his training file at the Mine – a photo of his Driver Licence which expired in 2013 and a copy of Mr Goldspring’s current Driver Licence which is attached to his application for a light vehicle on site licence, from November 2016. 9

[17] Mr Diefenbach also gave evidence that in May or June 2016 the Mine undertook a process of taking copies of employees Drivers Licences to store on the Mine’s training files. The collection of Licences from each crew member was rolled out at monthly tool box talks. Members of Mr Diefenbach’s crew provided their Licences to him, a Trainer on the crew or directly to the Training Department. To the best of Mr Diefenbach’s knowledge all members of his crew provided their Driver Licences for copying. During the roll out period, all workers were unable to complete authorisation for new training qualifications or competencies until the training department had obtained a copy of their Drivers Licence. Under cross-examination, Mr Diefenbach agreed that employees were not advised in writing of the need to provide their Driver Licences, and that he did not keep a record of which employees had provided their Licences.

[18] In relation to the assertion of a change in approach to the application of the SOP, witnesses for the CFMEU gave evidence alleging inconsistency in its application. Mr West said that prior to the introduction of the new SOP, if an employee lost their Driver Licence, on some, but not all occasions the employee would not be permitted to operate light vehicles on site. However, such employees were not excluded from the Mine but were permitted to perform work and were paid.

[19] In the cases referred to by Mr West, some employees were granted an exemption from the Licence requirement and were allowed to perform their usual work on mobile equipment and some employees were temporarily moved to other locations such as the Washplant. According to Mr West, in previous cases, such arrangements were always made for employees subject to licence suspensions for drink driving or accumulation of demerit points. Mr West’s understanding of the SOP is that issues relating to the capacity to operate vehicles are reported to the Company to ensure safety at the Mine. Further, it is Mr West’s understanding that the policies were developed to encourage employees to report such matters including by ensuring that employees are not blamed or punished.

[20] Mr Robertson said that the treatment of Mr Goldspring during the suspension period was unusual, and gave evidence about cases involving other employees who were permitted to continue to work and receive payment from the Company following suspension or loss of their Australian Driver Licence by virtue of being granted an exemption or provided with alternative work.

[21] Mr Robertson also gave evidence about a number of labour hire employees with no qualifications relevant to the operation of light vehicles or mobile equipment, who worked at the Mine while gaining various skills and tickets. According to Mr Robertson it is common for employees not to have to operate vehicles at the Mine, and particularly labour hire employees who are often bussed around site to the equipment that they operate.

[22] Mr Holden said that a worker is not immune from the consequences of losing their Driver Licence simply because they report it in accordance with the Safe Operation of Vehicles SOP. If an operator loses his or her Driver Licence and cannot operate vehicles and mobile equipment, then the operator cannot perform the inherent requirements of their position. This consequence is not retribution but a direct result of the worker’s action in losing his or her Driver Licence.

[23] Mr Holden said that if a worker loses their Australian Driver Licence they can apply to the SSE for an exemption which allows them to operate vehicles and mobile equipment on site. For an exemption to be granted, a worker must complete an exemption form. The exemption form requires the worker to state the reasons why they require the exemption from the SSE. After the form is completed it is signed by the relevant Department Manager and is then provided to the SSE for consideration and approval. Mr Holden is aware that exemptions from the requirement to hold a Driver Licence have been granted in the past by the previous and the current SSE. Mr Holden is also aware that previous Production Over-burden Managers have in the past supported applications for exemptions or facilitated transfers for workers to other departments in circumstances where those workers lost their Driver Licence and did not have an exemption.

[24] Mr Holden has not reversed these arrangements or sought to have exemptions which have already been granted, removed. However, Mr Holden does not consider that any decisions made by previous Production Overburden Managers are relevant to his consideration when a worker in that Department loses his or her Driver Licence. This is because the type of work being performed and available positions at the Mine change frequently and a situation which may have been able to be accommodated in the past at the discretion of a previous manager may not be able to be accommodated in the future. Mr Holden gave an example of an employee who had been transferred to another department in 2015 as a result of losing his Driver Licence, who lost his licence for a second time. That employee was not granted an exemption and Mr Holden determined it was not appropriate to move him to another Department. The employee was on leave without pay for a period of six months.

[25] Mr Holden also gave evidence about an employee from his Department who approached him seeking an exemption and was granted one by the SSE although that employee was required to take a period of leave between the commencement of the Driver Licence suspension and the grant of an exemption by the SSE. Mr Holden is also aware that the current SSE has granted exemptions for another two employees who are not in Mr Holden’s Department. Mr Diefenbach cited a case where a labour hire employee who lost his Driver Licence as a result of drink driving was told that as he could no longer perform his role in the Prestrip Department, he was no longer required at the Mine.

[26] Mr Holden outlined the process which he understands is followed when a worker in his Department loses his or her Driver Licence:

● The relevant worker will notify their Supervisor in accordance with the Safe Operation of Vehicles SOP;
● The Supervisor will ensure that the worker ceases to operate vehicles and mobile equipment;
● The loss of licence is escalated to Mr Holden who reiterates to the Supervisor or the worker that the worker cannot operate vehicles or mobile equipment without an Australian Driver Licence in accordance with the SOP. It is Mr Holden’s position that the worker should first apply for an Work Licence and appear in Court as required (which usually takes a few weeks) and can use any leave entitlement that is available;
● If the worker is not able to obtain a Work Licence Mr Holden will arrange to have a discussion with the worker regarding the details of the Driver Licence suspension;
● Following this discussion, Mr Holden will arrange for the worker to have a discussion with the SSE regarding an exemption if the worker wishes to do so, and Mr Holden explains that the SSE may or may not grant the exemption and may include conditions so that the worker does not think that there is an automatic right to an exemption;
● Prior to the meeting between the SSE and the worker, Mr Holden will have a discussion with the SSE regarding the worker’s loss of Driver Licence; and
● The worker will meet with the SSE regarding the Exemption and if it is granted, Mr Holden will sign off on the exemption form and any conditions imposed by the SSE.

[27] In Mr Holden’s experience, this process takes more than a week to complete. Mr Holden said that he referred to an exemption in the discussion about Mr Goldspring with Mr Towns. Mr Holden did this because it is his experience that workers at the Mine thought it was their automatic right to be granted an exemption. Mr Holden said that he was never required to raise the issue of whether Mr Goldspring should be granted an exemption because Mr Goldspring did not apply for one or raise the issue of an exemption with Mr Holden. Further, to the best of Mr Holden’s knowledge, Mr Goldspring did not raise the issue of an exemption with anyone else at the Mine.

[28] Under cross-examination, Mr Holden agreed that the process adopted by him when an employee lost his or her Driver Licence was to first require the employee to go to Court to seek a Work Licence and that this was a potentially costly and lengthy process. Mr Holden agreed with the proposition that the role that a Driver Licence requirement plays in the SOP is to ensure that employees on-site who are driving light vehicles or plant and equipment have some basic competency to do so and are familiar with the customs of road usage. Mr Holden conceded that he did not know what the determination by a Court to grant a Work Licence had to do with the SOP. Further Mr Holden agreed that the requirement to apply for a Work Licence is not found in the SOP and that this was a requirement he had introduced.

[29] Mr Holden accepted that his predecessors had a practice of supporting applications to the SSE for exemptions where employees lost their Drivers’ Licence and of allocating duties to such employees which did not require driving. Mr Holden rejected the proposition that he had changed the policy but accepted that his approach was a change to previous practices and that he had not informed employees of the change. Mr Holden also said that he did not see any value in BHP acting in a consistent manner. In relation to dealing with employees who lose their Drivers’ License. Further, Mr Holden agreed that he had decided that employees who lose their Drivers’ Licence are not to be allocated non-driving duties but rejected the proposition that he had taken this approach to impose a penalty on such employees. Mr Holden agreed that he had not considered alternative duties for Mr Goldspring but rejected the proposition that this was because he wanted Mr Goldspring to be held accountable for the loss of his Driver Licence. Mr Holden agreed that he told Mr Robertson that Mr Goldspring should be accountable for the loss of his Drivers Licence but maintained that he was not referring to work related consequences.

[30] In relation to this comment about employees being held accountable for the loss of their Driver Licence, Mr Holden said:

“So being held accountable is someone’s lost their licence, so being held accountable is they obviously can’t drive their car, they won’t be able to drive to work. And the accountability part is our SOP says you need a Driver licence. So you actually – by losing your licence, what way you’ve done – what way you’ve lost it you’ve lost it you’ve affected your work. So that’s the accountability piece, not that I’m going to put accountability on, and if somebody wants to apply for an exemption which is part of our process, then I’ll help them fill the form out and submit it to the SSE.” 10

[31] In response to Mr Holden’s evidence about the process when an employee loses his or her Driver Licence, Mr West said that this approach is not merely an application of the SOP but instead avoids the exemption process without any clear attempt to assign duties to an employee that the employee can perform. According to Mr West, the process would be much quicker if the employee was assigned alternative duties and/or completed an exemption form. Mr West also said that Mr Holden’s approach is drastically different from the process previously used, particularly given that BHP asserts that the SOP has not changed. Whilst exemptions have not been automatic, it has been the case that either an exemption would be granted or alternative duties would be provided that an employee could perform without an exemption.

[32] Mr West also asserted that Mr Holden’s approach effectively prevented Mr Goldspring from applying for an exemption. This is because Mr Goldspring was simply advised that he would not be permitted to work.

Mr Goldspring’s employment

[33] A letter dated 23 November 2010 from BHP was tendered by Mr Goldspring, offering employment as a Mine Employee in the Mine Operations team on a full time basis. 11 The letter states that the terms and conditions of Mr Goldspring’s employment are provided for in the predecessor to the Agreement (the Goonyella Riverside BHP Coal Pty Ltd Workplace Agreement 2007). It is not in dispute that the 2007 Agreement has been replaced by a later version, the BMA Enterprise Agreement 2012. Mr Goldspring states that he commenced employment in December 2010.

[34] When he commenced employment, Mr Goldspring worked in the Prestrip Department for approximately two years where he performed duties including operating rear dump trucks, graders and dozers. Following that period, Mr Goldspring was assigned to the Dragline Department where he completed a traineeship and obtained a ticket to operate draglines. Thereafter, Mr Goldspring was transferred back to Pre-Strip where he was trained to operate an excavator. Mr Goldspring continues to perform that task. Mr Goldspring maintains that when he commenced employment and during the process of obtaining employment he was not told by any representative of BHP that he had to have a Queensland Driver Licence or that holding a Driver Licence was a requirement of his employment.

[35] Mr Holden tendered terms and conditions of employment attached to the letter offering employment to Mr Goldspring. 12 The terms and conditions of employment attached to the letter of offer relevantly state:

“You are required to perform the duties in your job description as advised to you from time to time. You must comply with all lawful and reasonable instructions given to you in the course of your employment.”

[36] The terms and conditions of Mr Goldspring’s employment provide for an aggregate wage expressed as an annual amount and that Mr Goldspring will be eligible to participate in the coal bonus scheme. The terms and conditions also state that it is a condition of employment that Mr Goldspring work in accordance with the shift roster that operates in the Mine Operations Department. The terms and conditions further provide for a shift premium allowance in consideration of the demands of the roster and that the allowance will be altered or removed as appropriate if the roster changes.

[37] Relevantly the terms and conditions state:

“Occupational health and safety

The Company is committed to achieving the highest possible performance in occupational health and safety with the aim of creating and maintaining a safe and healthy working environment for all employees through its businesses.

It is a condition of your employment that you comply with Company policies to perform duties in a manner which observes any legal requirements and which adheres to safe working practices and policies established by the Company….”

Qualifications and Licences

You warrant that you hold the qualifications and work experience advised by you to the Company prior to commencing employment.

You are required to maintain all necessary qualifications, certificates, permits, licences and the like which enable you to fulfil your duties and must notify the Company if any such qualifications, certificates, permits, licences etc. are cancelled, revoked or are no longer valid. Failure to do so may result in the termination of your employment.

…

Policies and Procedures

You are required to comply with all the Company’s policies, standards and procedures as amended from time to time. While not incorporated into your contract of employment, the Company’s policies, standards and procedures must be adhered to by you. A failure to comply with Company policies, standards and procedures may result in disciplinary action including termination of your employment.”

[38] Mr Holden said that there are 1600 workers at the Mine in various production, engineering and administrative roles. This includes a number of labour hire workers and contractors. In the Production Overburden Department in Prestrip, Mr Holden is responsible for some 700 workers including 400 employed by BHP and 300 labour hire workers. According to Mr Holden the operation of vehicles and mobile equipment is an inherent requirement of the role of a Prestrip worker, including operation of rear dump trucks, water trucks, graders, dozers and other mobile equipment.

Suspension of Mr Goldspring’s Driver Licence and subsequent events

[39] On 1 June 2016, Mr Goldspring was pulled over by the Queensland Police for a roadside breath test and, in checking his Driver Licence, an issue with unpaid fines to the State Penalties Enforcement Registry was identified. Mr Goldspring said that the issue related in part to non-payment of registration fees and was because he had cancelled a credit card from which the payments had been previously deducted. The Police Officer informed Mr Goldspring that a SPER suspension was in place for the period 6 March until 1 June 2016. The Police advised Mr Goldspring that he needed to contact SPER and make further payment arrangements and the suspension would be lifted. Mr Goldspring did this and the suspension was lifted. Mr Goldspring was also required to attend Court on 9 August 2016 relating to him driving while the SPER suspension was in place, and as a result received a $300.00 fine and a one month suspension of his Queensland Driver Licence. 13

[40] Mr Goldspring was on days off at that time and said that he returned to work on Friday 12 August 2016. Mr Goldspring had a discussion with his supervisor Mr Diefenbach about the suspension of his Driver Licence and the reasons this had occurred. There is some difference in the accounts of the discussion and whether it occurred on 12 or 13 August 2016. The essential points are that Mr Diefenbach did not allow Mr Goldspring to start work, but required him to wait in start-up area while Mr Diefenbach sought information about how to deal with the situation with respect to the loss of Mr Goldspring’s Driver Licence.

[41] It is not in dispute that Mr Diefenbach also told Mr Goldspring that he would not be able to perform his usual duties albeit that Mr Diefenbach states that he told Mr Goldspring that he would definitely not be able to operate vehicles without a driver licence. Mr Diefenbach states that he sought information from his supervisors about how to deal with Mr Goldspring and did not receive a response during the shift. Mr Diefenbach also states that he told Mr Towns from whom he sought advice, the reasons for the suspension of Mr Goldspring’s driver licence.

[42] Mr Goldspring was absent on sick leave on 13 August according to his evidence and on 14 August according to Mr Diefenbach’s evidence. Mr Goldspring said that when he returned to work he was again asked to wait around pending instructions from Mr Diefenbach’s supervisor. Mr Goldspring said that when he was not provided with work on that shift, he decided to take annual leave for the two remaining shifts of his roster. Thereafter, Mr Goldspring was rostered off for four or five days.

[43] Mr Diefenbach’s evidence is that on 14 August 2016 he was informed by the Acting Pre-strip Superintendent Mr Towns, that the Production Overburden Manager Mr Holden had determined that:

● Mr Goldspring was unable to perform his duties in the Pre-strip Department because he did not have a current driver licence and there was no work for him to perform; and
● Mr Goldspring should not return to work until his driver licence was reinstated and in the meantime could use all of his accrued annual leave and then go on unpaid leave.

[44] Mr Diefenbach said that on 15 August 2016 he had a further discussion with Mr Towns about Mr Goldspring’s situation. During that discussion, Mr Diefenbach told Mr Towns that he was aware of another employee in the drill and blast crew who had been granted an exemption under the SOP. Mr Town stated in response that Mr Holden’s position regarding Mr Goldspring was clear and nothing had changed. Under cross-examination, Mr Diefenbach agreed that he wanted to clarify the position with Mr Towns because he was aware of another case where an employee who had his Driver Licence suspended was given non-driving duties and Mr Diefenbach thought that it was important that employees be treated consistently. Mr Diefenbach further agreed that he did not tell Mr Goldspring to apply for an exemption because Mr Towns had not mentioned this matter.

[45] There is a conflict in the evidence about when Mr Goldspring was informed of Mr Holden’s position. Mr Diefenbach states that he had a telephone discussion with Mr Goldspring on 15 August 2016 as follows:

“Me: While you don’t have a licence you won't be able to operate machinery. I don’t have any other duties that you can do in prestrip if you can't operate machinery or drive vehicles so I don’t require you at work. You’ll have to go on unpaid leave for the period of time that you’re unable to work and you’ll need to use a lot of your entitlements.

Mr Goldspring: I don’t want to be losing days at work. There was a guy who lost his licence who was transferred to Drill & Blast. Why can't I do that?

Me: Tom, you work in the Prestrip Department and there are no alternative duties you can do in prestrip. We've got a new Manager and this is his position. Like I said you will need to use your entitlements.

Mr Goldspring: I'll just take some annual leave. I've got some things going on so I've got things to do. I don’t want to use all my annual leave though. Can I just take two days?

Me: Yep, you can apply for two days annual leave but the rest will have to be unpaid leave until your get your Driver licence back.

Mr Goldspring: Ok mate.”

[46] Mr Goldspring maintains that he made a number of calls to Mr Diefenbach while he was on leave and days off and was told that Mr Diefenbach had not spoken to Mr Holden at that point and was still trying to find out what would happen. Mr Goldspring said that he approached Mr Diefenbach on his first day back at work on 22 August 2016 to find out what was happening, and was told that he had to leave site immediately because Mr Holden had decided to send him home.

[47] According to Mr Goldspring, Mr Diefenbach also told him that he had no other option but to go home and that he could take any leave he had accrued and would otherwise not be paid for the suspension period. Mr Goldspring maintained that he told Mr Diefenbach that he did not want to take annual leave. Mr Goldspring also said that it was clear to him that he would not be permitted to perform any work until the end of the suspension period and that he would not be paid for that period. Mr Goldspring left work and did not return until 9 September 2016. Mr Goldspring said he was not contacted by the Company during that time.

[48] In the three pay periods commencing 21 August 2016, Mr Goldspring’s payslips show that he was treated as being on an “unpaid absence” over a period of 101.36 hours. 14 Mr Goldspring contends that as a result of what he categorisesd as a “stand down” he forfeited a gross amount of $6,713.33 that he would have otherwise been paid had he been permitted to attend work.15 Under cross-examination, Mr Goldspring accepted that he was not told by any representative of BHP that he had been stood down and that this was his interpretation of what occurred.16

[49] In response to questions from the Commission, Mr Goldspring said that he was not told that he could seek an exemption from the SSE or that there was a process that he could go through in this regard. Mr Goldspring also said that he was not told to apply for a Work Licence so that he could keep working. Mr Goldspring said that he knew that he was required to report the loss of his Driver Licence because a few weeks earlier a casual worker was stood down indefinitely for losing her Licence.

[50] Mr Towns’ evidence is that he was advised by Mr Diefenbach that Mr Goldspring’s Driver Licence had been suspended due to a fine payment error and that it would be three weeks before the Licence was reinstated. Mr Diefenbach also asked Mr Towns whether there were alternative duties that Mr Goldspring could perform. Mr Towns had a discussion with Mr Holden, during which Mr Holden informed Mr Towns that if someone could not perform their job due to a loss of a Driver Licence and had an inability to operate equipment on site, then they needed to take paid leave or if that was not available, unpaid leave. Mr Towns relayed this message to Mr Diefenbach and left it to Mr Diefenbach to make arrangements with Mr Goldspring. Under cross-examination, Mr Towns agreed that he did not tell Mr Diefenbach that Mr Goldspring could apply for an exemption, and said that this was because Mr Holden had not raised the issue during their discussion.

[51] Mr Holden said that he had a discussion with Mr Towns about the loss of Mr Goldspring’s Driver Licence during which he told Mr Towns that:

● If someone does not have a Driver Licence they cannot fulfil their role because they can’t operate vehicles or mobile equipment at the site without one;
● He was not just going to get the SSE to give an exemption automatically without going through the usual process;
● The employee is welcome to use their leave entitlements if they wish and can apply for an extraordinary work Licence; and
● If the employee is not granted a Work Licence and wishes to put forward a case for an exemption, Mr Holden would consider this situation further in accordance with the usual process.

[52] Mr Holden maintained under cross-examination that he did advise Mr Towns that Mr Goldspring could apply for a Work Licence through the Courts or an exemption from the SSE. In re-examination, Mr Holden said that if an employee raised a concern with him about applying for an extraordinary Licence in relation to the time it would take or the cost, he would provide the employee with a form to seek an exemption. Mr Holden said in response to a question about his past practice with respect to the exemption form:

“So there’s an exemption forms go to the SSE to get approval. So what has happened and that’s what I’ve done, so that person has said it’s too costly and it’s going to take too long and it’s too much of an inconvenience for me. I’d like to apply for an exemption. I said okay, here’s the form and I’ll support you through to the SSE.” 17

Alternative duties

[53] Mr Goldspring asserted that during the suspension period he was, but for the instruction given to him not to report for work, ready, willing and able to perform work at the Mine. Mr Goldspring said that he did not want to take unpaid leave but felt he was forced to do so as a result of being told that he would not be permitted to work. Mr Goldspring also asserted that there were duties he could have performed during the suspension period. There are other tasks at the Mine which require little, if any, previous experience. Examples of duties in these areas were provided by Mr Goldspring including undertaking cleaning and other manual tasks or using previous experience as a Trades Assistant. Mr Goldspring also said he could have worked in the Dragline Department but is not sure whether Draglines are classified as mobile equipment. Mr Goldspring further said that he could have been provided with training including reviewing SOPs relevant to duties he would often perform.

[54] Mr West also gave evidence of alternative duties which he said could have been made available to Mr Goldspring. Mr West referred to labour hire employees engaged on a casual basis and asserted that many such employees do not hold on-site licences and routinely perform work that does not require the use of light vehicles. There are also many such employees who perform work on a daily basis that does not require the operation of vehicles or mobile equipment at all. Mr West cited examples of work including measuring holes; monitoring the depth of holes; erecting fences and measuring the amount of explosives going into holes. According to Mr West, it is common for labour hire employees with no previous experience to be allocated duties in the Drill and Blast Department.

[55] Further, employees on leave are generally not replaced with other workers, which means that crews are short of workers on a regular basis. Mr Goldspring could have been allocated to replace workers on leave on such crews. Mr Goldspring could also have been allocated to perform work in the Washplant area where there is always plenty of work to be performed removing coal dust and where labour hire employees are often working. Mr Goldspring could also have been assigned to work in the Training Department, where employees who are on light duties are often sent to work.

[56] Mr Robertson gave further evidence about the availability of alternative duties stating that there were plenty of tasks that Mr Goldspring could have been allocated during the suspension period. These included work in the Mine Services Department on pump crews, where only one member of a two person crew is required to drive. Tasks Mr Goldspring could have performed in this capacity include spotting; hooking up pumps to pipework and bolting pipelines together; uncovering flanges using a shovel; boat work involving running ropes from a bank to a floating pontoon that sits on water in the pit and associated manual duties; unloading and loading the pump truck; assisting with the transportation of pontoon pumps around the site and attaching and detaching tow rings.

[57] According to Mr Robertson there are two crews of eight people in the Pumps and in addition, there are four labour hire workers assigned to each crew. Many of the workers are not required to drive vehicles and this is particularly the case given there are two people on each crew. Mr Goldspring could have performed work that these employees and labour hire workers perform. Mr Robertson also said that the pump crews are regularly short handed when workers are on leave or sick. Mr Goldspring could have swapped with another worker for a period or a labour hire worker could have been assigned to another area.

[58] Further, Mr Robertson said that there are two Washplants at the Mine and employees have been assigned duties in the Washplants rather than other areas, for various reasons, including that they have not been able to operate vehicles. The Washplants at the Mine generally have five employees per crew with an additional two labour hire workers on each crew. There are four crews and the Washplants operate 24/7. There is plenty of work including general hosing of platforms and walkways; checking pumps and electric motors; erecting temporary barriers where there is planned work to be performed or for spills. Much of the work is labouring and does not require special training. Mr Goldspring could also have been allocated work in the Drill and Blast Department including measuring holes; laying out explosive equipment; monitoring the depth of holes; erecting fences; and measuring the amount of explosives going into holes. Mr Robertson said that it is common for labour hire workers with no experience to be allocated duties in the Drill and Blast Department and there is no reason why Mr Goldspring could not have been allocated such duties. Mr Goldspring could also have been assigned duties in the training department such as completing time in simulators to provide training in truck and grader operations or reviewing SOPs.

[59] Mr Robertson also gave evidence about the number of labour hire employees engaged on work at the mine on a casual basis. BHP has stated on occasions that there is a benefit in engaging such employees because they can “turn them off and on”, including at times when permanent employees of BHP have been made redundant. According to Mr Robertson, there are significant numbers of casual labour hire workers performing work that does not require the operation of vehicles or mobile equipment. It is also the case that employees on leave are generally not replaced with other workers leaving crews short of workers. Mr Goldspring could have been allocated to perform duties on such crews.

[60] Mr Holden’s evidence was that in circumstances where non-operational duties are required to be performed regularly at the Mine, he is responsible for employing a person to complete that work. Workers are employed in administrative roles for the purpose of completing paperwork etc. which means there is a limited amount of alternative non-operational duties available at the Mine. It would be difficult for Mr Holden to identify sufficient alternative duties at the Mine for workers who require modified duties due to illness or injury or for workers who lose their Australian Driver Licence. A significant number of the alternative duties identified for workers who are recovering from illness or injury involve the operation of light vehicles to get around the Mine.

[61] Mr Holden states that while he did not consider whether there were alternative duties available for Mr Goldspring to perform during the suspension period, there are a very limited number, if any, of full time jobs that a Mine Employee can perform without a current Australian Driver Licence. Mr Holden gave evidence about a number of roles as follows. Draglines are considered to be mobile equipment and cannot be operated without a current Australian Driver Licence. Additionally, it is necessary for a Dragline Operator to drive a light vehicle from the pre-start area out to the dragline and back again, each shift. Dragline Operators are also required to operate dozers, track dozers and cable tractors which are mobile equipment.

[62] The role of Blast Guard requires employees to man the perimeter of a blast exclusion zone to ensure that no people or equipment inadvertently enter a blast exclusion zone just prior to or during a blast. Blasting only occurs on day shift and the duties of a Blast Guard are only required every other day for a few hours at a time, and not on a full time basis. Mr Holden acknowledged that there are duties which some workers in the Drill and Blast Department perform which do not require the use of vehicles including preparation of blast holes. However, there is no role dedicated only to these duties with workers in the Drill and Blast Department performing a wide variety of duties which involve blasting tasks and the operation of vehicles.

[63] In relation to work in Washplants, Mr Holden said that workers in that area are required to operate forklifts, bobcats, loaders, dozers and light vehicles. While there are some duties that do not require the operation of vehicles and mobile equipment, such as the management of the plant itself, there are no roles dedicated to only those duties. Workers in the Washplants perform a wide range of duties which involve management of the plant and the operation of vehicles and mobile equipment. Even if a worker was only tasked with completing plant inspections, it would not be possible to walk around the plant on foot due to its size and the distances involved. As such, the worker would still be required to operate a light vehicle. Labour hire employees are also required to have a current Driver Licence to operate mobile equipment.

[64] Mr Holden also said that workers in the Mine Services Department operate in small teams (at times by themselves and at times in groups of two) that drive all over the mine in light vehicles for the purpose of moving pumps and turning them on or off. While a worker at the Mine will periodically be required to act as a spotter, this is not a full time position or role that is required at all times. Mr Goldspring is not trained or competent to hook up pumps and workers also need to be trained and competent to operate a boat and operate near water, before undertaking any boat work.

[65] In response to Mr West’s evidence about alternative duties, Mr Holden said he is not aware of any workers in his Department who perform roles, other than those in administrative roles or on special modified duties as part of a return to work program, who are not required to operate either vehicles or mobile equipment as part of the duties they perform. Operators in the Drill and Blast Department operate MMU trucks, De-waterers, Loaders, light vehicles, and trucks carrying explosives. It is necessary for a worker to have a Driver Licence to operate any of these vehicles or equipment. Furthermore workers in the Drill and Blast Department work a different roster – day shift only – to that worked by Mr Goldspring. As Mr Goldspring’s Licence was only suspended for a short period of time, it would have been difficult to complete the payroll information and roster transition process in time for the change to take effect.

[66] Mr Holden also said that while the duties identified by Mr West are performed on a daily basis, they only form part of a wider range of duties which are completed by workers in the Drill and Blast Department. That wider range of duties includes the operation of vehicles and mobile equipment. Workers who commence in that Department are trainees under a specific program. In relation to Mr West’s evidence about leave coverage, Mr Holden said that this is built into and accounted for in the budgeted numbers each week.

[67] Under cross-examination, Mr Holden agreed that BHP has the right to direct an employee to perform any role that the Company requires, provided that the employee has the relevant qualifications to perform the role, and that flexibility is an important part of the operation of the Mine. Mr Holden also agreed that not every Mine worker is required to drive a light vehicle or operate mobile plant/equipment on every shift. Mr Holden disagreed with the proposition that a shot firer’s assistant would follow the shot firer around in a light vehicle all day and said that the shot can be a kilometre long and the assistant performs multiple tasks. Mr Holden also maintained that the reallocation of workers who had lost their Drivers Licences had caused difficulty because other employees had to stop what they were doing to drive workers who could not drive themselves. Mr Holden maintained that in his crew he needed every member to be able to operate vehicles and mobile equipment and to have their Drivers Licences to enable them to do so. Mr Holden accepted the proposition that he did not turn his mind to the question of whether there was other work at the Mine that Mr Goldspring would be permitted to perform during the suspension period.

[68] In relation to whether alternative duties could have been provided to Mr Goldspring during the period of the suspension, Mr Diefenbach said that he had reviewed Mr Goldspring’s training records and identified that Mr Goldspring is trained and competent to operate a dragline or to undertake the role of blast guard. Mr Diefenbach said that a dragline is mobile equipment and could not be operated by Mr Goldspring without a Driver Licence or an exemption. Further, Mr Goldspring could not have operated auxiliary equipment or a light vehicle to enable him to get to and from the dragline. There is no full time position of blast guard and employees undertaking this work are also required to operate a light vehicle to get to the post on the exclusion zone perimeter.

RELEVANT AGREEMENT PROVISIONS

[69] The provisions of the Agreement relevant to the issues in dispute are:

“3 Contract of Employment

3.1 Types of Work arrangements

The Company may utilise all or any of the following work arrangements:

(a) Full-time;

(b) Part-time;

(c) Casual; or

(d) Temporary

3.2 Full-time employment

A full-time Employee is an Employee who has been engaged by the week to work 35 ordinary hours per week averaged over a roster cycle.

3.7 Paid Suspension

(a) In the circumstances where an Employee’s conduct may lead to disciplinary action, the Company may at its discretion suspend the Employee without loss of pay while the Company investigates the matter.

(b) The appropriate period of any suspension will be determined by the Company but such a decision will not limit the Company’s right to terminate the Employee’s employment if the circumstances warrant such termination of employment.”

…

3.8 Stand Down

(a) The Company may stand down an Employee for:

(1) Part or all of a shift in the following circumstances:

(A) Refusal of duty; or

(B) Neglect of duty; or

(C) Misconduct; or

(1) Part or all of a shift or shifts if the Employee cannot be usefully employed in the Employee’s usual classification because of industrial action.

(a) In addition to the circumstances outlined above, where a disciplinary procedure provides for a suspension period as part of the range of penalties available, this sub-clause does not limit the Company’s ability to stand down an Employee for the duration specified in the relevant disciplinary procedure.

(b) The Company may stand down an Employee during any period in which the Employee cannot usefully be employed because of one of the following circumstances:

(1) A breakdown of machinery or equipment that has lasted for more than four consecutive working days, if the Company cannot reasonably be held responsible for the break down; or

(2) A stoppage of work for any cause that has lasted more than fourteen consecutive working days for which the Company cannot be held reasonably responsible.

(a) The Company will take all reasonable steps to minimise the need for standing down Employees under these circumstances, including where practical, carrying out training.

(b) The Company is not required to pay an Employee whilst they are stood down.

(c) Employees who have been stood down under the circumstances outlined in clause 3.8(c) may request to take outstanding leave entitlements. If the Employees does not request to take outstanding leave entitlements or does not have adequate accrued entitlements, they may be stood down without payment.

(d) The continuous service of an Employee who is stood down under this clause is dealt with in accordance with clause 47.2.”

4 Employee Duties

4.1 Employees will perform such tasks as reasonably required by the Company without any demarcation of duties while complying with all legal and statutory obligations. In this regard, Employees accept that the Company can require the performance of any operational, mining, maintenance or technical tasks that Employees are trained, competent and/or authorised to perform. The Company will not allocate tasks in a manner which promotes deskilling.

…

4.4 Employees are required to attend for work in accordance with their roster and work as directed. An Employee will only be entitled to be paid for time worked, unless taking authorised leave.

COMMON LAW PRINCIPLE

[1] In Automatic Fire Sprinklers v Watson 18 Dixon J stated the principle that there is no liability for the payment of wages or salary unless earned by service, even though the failure to serve is a consequence of a wrongful act – in that case the wrongful discharge of the employee.19 A variation of this this principle was also stated in Csomore v Public Service Board of New South Wales20 by Rogers J as follows:

“Unless an employer waives the usual requirements of a contract of employment that an employee perform the full range of work properly assigned … or unless the award under which the employee works makes a contrary provision, payment of wages is conditional upon performance by the employee of the full range of work assigned, or at least a readiness and willingness to do so.” 21

[2] There is a long established right at common law for an employer to refuse selective or part performance of duties or attendance by an employee, and to direct that no work be performed for the period where the employee refuses to perform all of his or her ordinary duties. This principle has been referred to as “no work as directed, no pay” and can be distinguished from the concepts of “suspension” and “stand down”. In Coal and Allied v McPherson 22, the Full Court of the Federal Court gave consideration to the meaning of these concepts.

[3] The facts in McPherson were that an employee who, upon informing his employer that due to family responsibilities, he would not work for the full duration of a shift under a new roster arrangement, was told that he was “stood down” without pay for an indefinite period, until he was prepared to comply with his contract of employment. The employee contended that he was stood down in a manner prohibited by the then Workplace Relations Act 1996 which essentially provided that an employee could be stood down where the employee could not be usefully employed because of a strike, breakdown of machinery, or stoppage of work for any cause for which the employer could not reasonably be held responsible. The employer contended that notwithstanding the use of the term “stood down” by the manager who dealt with the issue, the Workplace Relations Act 1996 provision in relation to standing down employees was not engaged on the basis that the employer had exercised a right to refuse partial performance of the employee’s duties, and that the appropriate legal characterisation of the events is that the employee was “stood aside” as permitted by the common law.

[4] The majority in that case (Marshall and Cowdroy JJ) observed that the type of stand down encompassed by the then legislative provisions encompasses a large range of situations where, for various reasons, an employer is unable to provide useful work to employees for a particular period of time, because of circumstances beyond its control. As the majority put it:

“It follows that Mr McPherson was not ‘stood down’ as that expression is usually understood in an industrial context, which connotes an absence of work to be done, for whatever cause. There was work for him to perform but he was not ready and willing to perform it until such time as he was prepared to return to work.” 23

[5] The majority in McPherson held that the legislative provisions in relation to standing down employees did not prohibit an employer from making a direction to an employee to work in accordance with a contract of employment so as to substantially fulfil the conditions of that contract, or be refused pay until the employee agrees to do so. 24 The majority also noted that the need for stand down provisions in industrial instruments has long been recognised, because absent such provisions an employee is prima facie entitled to wages for attending work, even if no work is available.25

[6] The majority also concluded that the collective agreement covering Mr McPherson did not evince an intention to provide for the payment of wages or salary, irrespective of the performance of work. Notwithstanding that the collective agreement provided for an annual salary, other clauses demonstrated that actual performance of work is expected in return for payment of salaries, other than when an employee was absent on leave.

[7] In his judgement in McPherson, Buchanan J analysed the concepts of “stand down”, “suspension” and the common law principle of “no work as directed no pay.” His Honour observed that there is usually no need to distinguish between the concepts of suspension and stand down on the basis that the common law principle at work in both cases is the same, namely that there is no right of unilateral action by an employer in the absence of a contractual term. This remains the case, even though award provisions dealing with those subjects tended as they developed, to concentrate on misconduct by the employee (in the case of suspension) and lack of useful work for employees (in the case of stand down clauses). His Honour went on to distinguish a third concept as follows:

“In a case where an employee complains that wages due under a subsisting contract of employment have not been paid due to some breach by an employer which has prevented the actual performance of work, discussion often commences with the proposition that an employer must, as an element of a successful case, demonstrate that he or she was ready, willing and able to perform normal work and was prevented from doing so by the wrongful conduct of the employer. A principle developed, both in the particular industrial jurisprudence of this country, and in the common law in the United Kingdom and Australia, to the effect that a refusal to perform normal duties disentitles an employee to payment, even though some duties were performed. Arising from the same idea that (that employees were not at liberty to perform duties selectively) there developed a right of the employer to refuse to accept the performance of any duties while the refusal to perform all ordinary duties continued. This was variously referred to as putting an employee ‘off pay’, a right to ‘stand aside’ an employee, as ‘no work, no pay’ or, more precisely, as ‘no work as directed, no pay’.” 26

[8] Generally, the cases where the application of this principle has been considered, have involved conscious or deliberate refusal by an employee to perform some or all of the employee’s ordinary duties. Gapes v Commonwealth Bank of Australia Ltd 27 and Welbourn v Australian Postal Commission28 involved a refusal by employees to perform part of their duties, due to industrial bans and limitations. In both cases the employers were held liable to pay wages to employees on the basis that they had accepted the benefit of the partial performance of duties by the employees.

[9] Conversely, in Electricity Commission of NSW v FEDFA 29 an employee who refused to undertake a particular task (placing in service a high pressure river pump) and remained on site stating he was willing to do other work, was found not to be entitled to payment on the basis that the employee had been told that if he would not do the work he refused to do, he was not to do any other work. In that case, the work that the employee refused to do was the subject of bans and limitations imposed by employees and their Unions. The availability of the employee to do other work was not relevant since he was required to perform the specified work and no other work. It was also found that the employer had not suspended the employee but rather the employee was disentitled to payment while his refusal to obey a lawful and reasonable direction continued, and this was unaffected by the employee offering to remain on the job and perform other work which the employer did not require.30 This was also the case in New South Wales Teachers Federation v Department of Education (NSW)31 where teachers who withdrew from teaching duties for a portion of a day were told that they were required to do no work and were found to have no entitlement to wages.

[10] Those cases were discussed by the Industrial Commission of New South Wales in Court Session, in Electrical Trades Union of Aust. v Illawarra County Council 32 (Illawarra) where it was observed that both treated the refusal by the employee to carry out work as directed, as a demonstration of an employee’s unreadiness and unwillingness to perform the service to which the employee’s contract of employment related, which in turn disentitled the employee to wages for the period that the refusal continued.33 In Illawarra the Court was considering factual circumstances where employees had withdrawn their labour and then placed bans on the performance of certain work. The Court was required to consider whether the employer was justified in refusing to allow employees to commence work and to carry out duties not affected by the bans. There were two categories of employees considered by the Court in Illawarra – those who were directed to perform the banned work and refused to do so, and those whose ordinary duties did not include the banned work, but who indicated that they were only prepared to return to work with the bans in force. In relation to the group who were directed to perform the banned work, Cahill J held:

“…it is clear that the employees in question were not ready and willing to carry out, during the relevant period, work which they were obliged to perform under their contracts of employment. They were ready and willing to perform part of such work, but a readiness and willingness to perform part, but not the whole, particularly when the banned work was of an important and significant nature having regard to the enterprise carried on by their employer (as was the case here), are insufficient to demonstrate the preparedness of the employees to carry out the terms of their contract. In the circumstances, it is my opinion that it was not incumbent on the employer to allow the employees to commence work on terms which they, the employees, desired to dictate, terms different from the terms of their contracts of employment, and that in law, the employees have no right to payment while they maintained that attitude.” 34

[11] With respect to the group of employees whose duties did not ordinarily include the banned work, Cahill J found that they were not prepared to carry out their work unless the employer was prepared to allow the employees in the first group to commence work with the bans in existence. Cahill J held that these employees were not entitled to impose, and the employer was not obliged to accept, such a condition, and that this group of employees were, in reality, demonstrating that they were not ready and willing to perform their obligations under their contracts of employment. Cahill J also noted that the Award covering the employees contained a clause requiring employees to perform work in accordance with the requirements of the employer, but was of the view that his conclusions would have been the same had the award contained no such provision. 35

[12] In his judgement in Illawarra Watson J noted that the condition that employees sought to impose with respect to the non-performance of the banned work was a significant condition, given that the employer was a public utility changed with the obligation of supplying an essential service – electricity – to consumers. Watson J also held that the employees in both groups were not entitled to wages for the period in which they were not ready and willing to perform their obligations as employees under their contracts of employment. Fisher P concurred with the judgements of Cahill and Watson JJ.

[13] In Australian National Airlines Commission v Robinson 36 the employee (a pilot) was a member of a Union which had resolved to continue industrial action in the form of stoppages of up to 24 hours per week until a dispute was resolved. Upon the failure of the union to confirm that pilots were prepared to return to work under the terms and conditions of their employment agreement without threat of further disruption, the employer suspended flying operations. The case involved an action for breach of contract of employment, whereby the plaintiff pilot sued for damages asserting that the employer was obliged to provide him with aircraft to fly on the flights for which he was rostered.

[14] The Full Court of the Supreme Court of Victoria held that the plaintiff pilot should be treated as having reported for duty on terms that if a stoppage was called by the Union, he would stop work as specified and that having regard for this, the pilot had failed to show that he was ready and willing to perform his contract. Accordingly his claim failed. In reaching this conclusion, the Court stated:

“The question whether a particular employee is ready and willing to perform his contract will often involve a question of degree. If an employee, on presenting himself for work at his place of employment, indicates to his employer by his words or actions that he is only willing to perform his duties under his contract of employment if another term is, in effect, added to the contract and that term is a significant one, there would be little difficulty in reaching a conclusion that the employee was not ready and willing to perform his obligations under the existing contract of employment….The decision in a given case must depend upon all of the circumstances including the nature of the employment and the terms of the contract of employment.” 37

[15] In Robinson the Court held that the extent of loss or damage likely to be suffered by the employer was not a relevant consideration but the nature of the employer’s business may be. The court further observed that the pilot was in effect indicating that he was ready and willing to perform his contract if a new term were added, enabling him to stop work for up to 24 hours if the union executive directed him to do so. 38 Further, it was noted that plaintiffs seeking equitable relief by way of injunction, could not obtain that relief unless they alleged and proved that they had performed their part of the bargain hitherto and were ready and willing to do so in the future.39

[16] The cases referred to by the parties in relation to the right of an employer to refuse to accept part performance of obligations under an employee’s contract of employment, also establish a number of principles that are relevant to the present dispute. Firstly, those cases establish that where the employer refuses to accept part performance of work, the direction given to the employee to perform particular work which the employee refuses to perform, it is relevant that the direction is lawful and reasonable. This principle was stated by the Industrial Commission of NSW in Court Session in in Electricity Commission (NSW) v Federated Engine Drivers and Firemen Assn of Australasia (NSW) 40 as follows:

“Cases abound in this Commission and elsewhere which state categorically that in order to be entitled to payment of the wage which the terms of his employment prescribe, an employee must be ready, willing and able to perform in accordance with the lawful and reasonable directions of his employer, the service for which he contracted…” 41

[17] This principle was earlier established in Automatic Fire Sprinklers v Watson where Dixon J noted that: “…wages are for the service reasonably demanded under a subsisting relationship of master and servant.” 42

[18] BHP acknowledges this line of authority and states in its submissions in the present case that in order to be entitled to payment of the wage which the terms of his employment prescribe, Mr Goldspring must have been ready, willing and able to perform, in accordance with the lawful and reasonable directions of BMA, the service for which he contracted.

[19] The corollary to these statements of principle is that an employee may be entitled to wages if the direction to perform particular work that the employee is not ready, willing and able to perform, not lawful or reasonable.

[20] Secondly, there is authority for the proposition that it is relevant to the application of the common law right of an employer to refuse part performance of work that the work the employee refuses to do is of an important and significant nature, having regard to the enterprise carried on by the employer. 43 BHP contends that in the present case, an essential component of the operation of the Mine is the performance of mining activities carried out by Mine employees using vehicles and mobile equipment.

[21] Further, I am of the view that it is relevant that the cases in which the common law right of an employer to refuse to accept part performance of work have been considered, generally involve a deliberate or conscious refusal of an employee to perform particular work. While employees in those cases may have been ready, willing and able to perform some work, they were not ready and willing to perform all of the work required under their contracts of employment. Further the work they refused to do was work that but for the refusal, they were able to do.

[22] None of the cases cited by the parties involve inability to perform work in circumstances where the employee was ready and willing to do so. While McPherson did not involve an industrial ban, it is clear from the facts of the case that the employer had changed the roster under which Mr McPherson was working and he took issue with the change and refused to work in accordance with the roster, despite having the ability to do so.

CONSIDERATION

Application of common law principle

[23] The CFMEU asserts that BHP had an obligation to provide Mr Goldspring with work and that the temporary loss of his Driver Licence did not affect that obligation. According to the CFMEU, the historical position to the effect that an employer was not required to provide an employee with work, except in exceptional cases or where an employment contract provides otherwise, is changing and there is a growing recognition that employees are required to be provided with work when such work is available. Support for this proposition is said to be found in the decision of the High Court in Blackadder v Ramsay Butchering Services Pty Ltd 44 and the Federal Court in Quinn v Overland45.

[24] Passages in those judgments stressing the importance of work and the obligations to provide it were cited by the CFMEU in support of the proposition that there is a general obligation on employers to provide employees with work. However, this must be seen in light of the context and the facts of the cases being considered. 46

[25] Blackadder was concerned with the meaning of “reinstatement” ordered by the Australian Industrial Relations Commission following a finding that an employee had been unlawfully terminated. In that case, the employer purported to pay the employee wages without reinstating him and putting him back into the position he held prior to his unlawful termination. In that case, the employee was ready, willing and able to work. Quinn v Overland was concerned with an application for interlocutory relief in the form of an injunction, requiring that an employee be allowed to return to work pending the hearing and determination of an application in respect of the validity of her suspension from employment. The suspension had been in place for a period of seven months and the employee was able to perform her normal work.

[26] As Buchanan J stated in McPherson, there is an undoubted common law right for an employer to refuse selective performance of duties or attendance by an employee, and if necessary, to direct that no work be performed for as long as the refusal to perform ordinary duties persists, broadly described as “no work as directed, no pay”. There is no suggestion in either Blackadder or Quinn v Overland that this common law principle was altered, diluted or otherwise called into question and I do not accept the submission of the CFMEU to the contrary.

[27] The CFMEU also contends that the terms of the Agreement preclude the Company from applying the principle of “no work as directed, no pay” or from exercising the right to refuse part performance of work required under Mr Goldspring’s contract of employment. This assertion is founded on the proposition that the terms of the Agreement in relation to stand down and suspension are exhaustive and that there is no right to refuse to provide work to an employee and to withhold payment of wages to an employee other than in accordance with clause 3.7 or clause 3.8 of the Agreement.

[28] It is well established that the common law principle yields to any statutory or statutorily authorised provision or statutory instrument inconsistent with its operation. 47 Accordingly I turn now to the question of whether the Agreement removes or excludes BHP’s right at common law to implement this principle.

[29] In relation to whether the former provisions of the Workplace Relations Act 1996 with respect to stand downs operated to remove the common law rights of an employer to refuse to accept part performance of work required under a contract of employment, Buchanan J in McPherson stated that in the absence of language compelling such a conclusion, it should not be accepted. In this regard, his Honour cited the following passage from the judgment of Ryan J in United Firefighters’ Union of Australia v Metropolitan Fire Brigades Board 48:

“…a statute or award is not to be construed as taking away the employer’s right acknowledged by the common law to withhold payment of wages for periods of non-performance of duty unless the language of the award or other statutory instrument intractably compels such a construction.”

[30] This statement is also apposite to the terms of enterprise agreements. The provisions of the Act in relation to the circumstances in which an employer is entitled to stand down an employee are not relevantly different to those in the former legislation. Section 524 of the Act gives employers a right to stand down employees in certain circumstances where they cannot be usefully employed. Section 524(2) effectively provides that where a contract of employment or an enterprise agreement provides for the employer to stand down an employee, then s.524(1) does not apply. In the present case the Agreement provides a right for BHP to stand down employees in specified circumstances including refusal or neglect of duty; misconduct; or where the employee cannot be usefully employed for a range of reasons beyond the control of BHP. None of those matters applied in Mr Goldspring’s case.

[31] In my view, the Agreement does not compel a construction to the effect that it takes away or excludes BHP’s right at common law to refuse to accept part performance of an employee’s obligations under a contract of employment. It is true that Mr Goldspring is a full time employee as defined by the Agreement. Contrary to the submission of the CFMEU, Mr Goldspring has not been engaged to work 35 hours per week averaged over the roster period. The Agreement provides that the 35 hours are ordinary hours. The Agreement further provides that a range of rosters may be worked and that reasonable additional hours may also be required by the Company and payment for such hours is provided for in the Agreement. There is nothing in these provisions indicating that an average of 35 hours of ordinary work per week – or any number of hours per week – must be provided to Mr Goldspring and that he must be paid for those hours in circumstances where the common law right of the employer to refuse to accept part performance of work required under his contract of employment is enlivened.

[32] I do not accept that BHP stood down or suspended Mr Goldspring. It was not asserted that Mr Goldspring neglected or refused duty; engaged in misconduct; or that there was no work for him to do. There was no disciplinary action taken against Mr Goldspring. BHP did not utilise clause 3.7 or clause 3.8 and could not have done so in the circumstances. At no point was Mr Goldspring told that he was stood down or suspended and BHP has consistently maintained that the action with respect to Mr Goldspring was not a stand down.

[33] I also do not accept the submission that the inclusion of provisions in the Agreement providing for employees to be stood down or suspended from their employment indicates that the Agreement restricts or removes the rights of the employer at common law to refuse to accept part performance of duties required under an employee’s contract of employment and to direct, if necessary, that no work be performed. The respective clauses - Clause 3.7 Paid Suspension and 3.8 Stand Down – reflect the types of clauses identified by Buchanan J in McPherson. As Buchanan J noted in that case, award provisions in relation to suspension have tended to concentrate on misconduct by employees and stand down provisions have concentrated on circumstances where there is no useful work for employees. The development of such clauses also reflects the fact that absent these provisions, there is no right at common law to suspend or stand down employees in such circumstances.

[34] Consistent with that position, clause 3.7 of the Agreement gives BHP the right to suspend an employee without loss of pay while conducting an investigation in relation to conduct by an employee that may lead to disciplinary action. Similarly, clause 3.8 of the Agreement gives BMA the right to stand employees down in specified circumstances including where there is no useful work for them to do. Neither clause is expressed in terms that give an indication that they are intended to exhaustively deal with the circumstances in which an employer can refuse to pay wages to an employee or to provide the employee with work. Neither clause gives any indication that it is intended to exclude the exercise by BMA of the common law right to refuse to accept part performance of work required under employees’ contracts of employment.

[35] For these reasons I do not accept the submissions of the CFMEU on this point and find that the Agreement does not exclude BMA’s right at common law to refuse to accept part performance of work under Mr Goldspring’s contract of employment and to refuse to accept any work while his inability persists and as a result to withhold payment to him for the period his employees.

[36] However, that is not the end of the matter. While the Agreement does not exclude the application of BHP’s common law right to refuse to accept part performance of work required by Mr Goldspring’s contract of employment, it is also necessary to consider whether the Agreement modifies that right. In my view the Agreement does modify the right of BHP to apply the common law principle, by virtue of clause 4.1 which provides that employees will perform such tasks as are reasonably required by the Company. Mr Goldspring’s written contract of employment also requires him to comply with all lawful and reasonable instructions given to him in the course of his employment.

[37] The present case is not a case where BHP required certain work to be performed by Mr Goldspring and he refused to perform that work. Mr Goldspring did not refuse to perform any of the work required under his contract of employment. Rather, he was unable to perform some of that work because of the loss of his Driver Licence, which meant that he was unable to comply with the requirements of the Safe Operation of Vehicles SOP which applied at the Mine. BHA accepts that Mr Goldspring was ready and willing to work in accordance with his contract of employment but maintains that he was not able to do so.

[38] Effectively, BHP required Mr Goldspring to undertake the task of driving vehicles and operating mobile plant/equipment when he was unable to do so. Further, BHP treated Mr Goldspring’s inability to drive vehicles and operate mobile plant/equipment during the period his Driver Licence was suspended as part performance of his employment contract. BHP also maintains that by asserting that he should have been provided with alternative work that did not involve the operation of vehicles, Mr Goldspring is attempting to include an additional and significant term to his contract, requiring BHP to accept part performance. BHP maintains that it is not required to accept part performance, and is entitled to refuse to accept any other work while Mr Goldspring’s inability to operate vehicles and mobile plant/equipment remains in effect.

[39] As previously noted, it is relevant to the exercise of the common law right purported to have been relied on by BHP to refuse to accept part performance by Mr Goldspring, that the direction that he perform particular work – driving vehicles and operating mobile plant/equipment – is lawful and reasonable. Even if the cases do not establish such a principle, clause 4.1 of the Agreement provides that any requirement for an employee to perform particular tasks must be reasonable and in my view this modifies the application of the common law principle in the present case.

[40] It is also relevant to the consideration of whether BHP had the right to refuse part performance by Mr Goldspring that the work Mr Goldspring was required to perform was important and significant in the context of the operation of the Mine.

[41] The answers to the questions for arbitration require consideration of not only whether the Company had the right at common law to refuse part performance but whether it had the right to do so in the circumstances of the present case. For the reasons set out above, I have concluded that BHP’s right to refuse to accept part performance of an employee’s contract of employment is not excluded by the terms of the Agreement. In relation to whether BHP had the right to refuse part performance in the circumstances which pertained to Mr Goldspring’s case, the following matters are relevant:

● The duties required under Mr Goldspring’s contract of employment;
● Whether the duties that Mr Goldspring was unable to perform during the suspension period are important and significant for BMA in the context of its business;
● The obligations if any that BMA had to make work available to Mr Goldspring that did not involve the operation of vehicles and mobile plant or equipment, for the suspension period;
● Whether the requirement of BMA that Mr Goldspring perform duties he was unable to perform during the suspension period was consistent with clause 4.1 of the Agreement which requires that employees will perform tasks as reasonably required by the Company.

[42] The last point includes consideration of how BHP’s managers dealt with Mr Goldspring. I turn now to consider each of these matters.

The duties required under Mr Goldspring’s contract of employment

[43] The evidence establishes that Mr Goldspring was employed on a full time basis as a Mine Employee in the Mine Operations Team. The written terms and conditions of Mr Goldspring’s employment required that he perform the duties in his job description as advised to him. No written job description was tendered. The terms and conditions of Mr Goldspring’s employment also include a commitment to comply with occupational health and safety requirements, policies and procedures established by the Company and to holding and maintaining licences as required.

[44] Notwithstanding that there is no written position description, it is clear from the evidence that the duties Mr Goldspring was performing at the time his Driver Licence was suspended required him to operate vehicles and mobile plant and equipment and that these duties were integral to his role as a Mine Employee in the Mine Operation Team. Mr Goldspring was working in the Prestrip Department and as such was required to operate rear dump trucks, graders, dozers and excavators. During the suspension period, Mr Goldspring was unable to undertake his normal duties by virtue of the operation of the Safe Operation of Vehicles SOP, unless he obtained an exemption from the SSE. Mr Goldspring did not have an exemption.

[45] I do not accept that it is relevant whether the requirement to hold a Driver Licence in order to operate vehicles and mobile plant/equipment on site, was introduced before or after Mr Goldspring’s contract of employment was entered into. The Safe Operation of Vehicles SOP is part of the system for managing occupational health and safety at the Mine and regardless of when the relevant SOP was implemented employees are required to comply with it by the terms of their employment contracts. Mr Goldspring was required by his employment contract to comply with the SOP on the basis of the specific commitment in his contract of employment to that effect. That commitment is not referable to a particular point in time – such as the date the contract of employment was entered into – but rather is an ongoing requirement that may alter in the course of employment. The requirement in the written contract of employment for employees to maintain necessary licences and permits is arguably in relation to those held at the commencement of employment. There is no evidence that Mr Goldspring warranted that he held a current Australian Driver Licence at the point he was employed. Notwithstanding this I am of the view that the commitment to comply with occupational health and safety policies, applies to all policies in existence at the point employment commences and to those which are developed while an employee is employed.

[46] It follows that I do not accept the CFMEU’s submission that it was not a requirement of Mr Goldspring’s employment that he maintain a Driver Licence or that he perform driving duties in the course of his work. Regardless of whether Mr Goldspring was required to have a Driver Licence prior to commencing employment or whether or not his employment was conditional on such a requirement, Mr Goldspring was obliged by the terms of his contract of employment to comply and to continue to comply with that requirement when it was implemented.

[47] The terms of the Agreement also establish that there are functional work areas at each Mine including the area where Mr Goldspring worked – Production Prestrip. Clause 41 of the Agreement provides that each functional work area has its own specific skills requirements and that the Company is responsible for determining the actual skills required and the necessary number of such skills in each functional work area. Nothing in Mr Goldspring’s contract of employment or the terms of the Agreement suggest that the skills, permits, licences or qualifications which may be required of employees are established at the point they are employed and may not be altered during their employment. Further, the salaries payable to employees are calculated by reference to the roster that they work rather than in accordance with a classification structure that sets out duties required to be performed.

[48] For these reasons, I find that Mr Goldspring was required by his contract of employment to have the ability to operate vehicles or mobile plant or equipment. Furthermore, Mr Goldspring was required to hold and continue to hold any licence, permit or qualification required of him by the Company to carry out his duties including as implemented from time to time under standard operating procedures or the workplace health and safety systems implemented at the Mine.

The significance to BHP of the duties Mr Goldspring was unable to perform

[49] I accept the evidence of witnesses for BHP that the operation of vehicles and mobile plant and equipment is an important and significant part of the operation of the Mine. Vehicles are used to transport employees to parts of the Mine where they are required to work. Mobile plant and equipment is used to undertake mining operations. In particular I accept the evidence of Mr Holden that the tasks identified by Mr Goldspring and witnesses who gave evidence on his behalf, do not constitute a job and that in order to perform the majority of those tasks Mr Goldspring would have required transport to be provided to him by another employee.

[50] I also accept that the Mine site is a large area and there is little if any work that can be done by Mine Workers which does not require the operation of vehicles or mobile plant and equipment, even if only to allow employees to move between the locations at which they are performing work. It is also apparent from the terms of the Agreement that flexibility in the deployment of employees at the mine and the ability to allocate tasks to employees based on operational requirements is an important and significant part of the operation of the Mine. In particular, the Agreement does not provide for jobs or classification definitions. As previously noted, employees are paid in accordance with their rosters and are allocated to work in functional work areas, with BHP having the right to determine the skills requirements in each area.

[51] However, it is the case that the Mine is not subject to road rules and there was no legal impediment to Mr Goldspring driving a vehicle or operating mobile equipment on the Mine lease. The impediment to Mr Goldspring driving vehicles and mobile equipment was the effect of the Safe Operation of Vehicles SOP. The evidence establishes that there has been a practice of BHP managers making arrangements for employees during periods of temporary loss of Driver Licences so that they are not required during such period to drive vehicles or operate mobile equipment. This has particularly been the case when a suspension has been for a short period, as it was in Mr Goldspring’s case, involving a period of three weeks where he was required to be at work and could not operate vehicles or mobile equipment because of the Safe Operation of Vehicles SOP.

[52] Further, it is within the power of the SSE to grant an exemption from the requirement to hold a Driver Licence and managers have discretion to support that requirement. Mr Holden’s evidence on the exemption process was contradictory. On the one hand Mr Holden stated that he was concerned that employees expected an exemption to be automatic and that they should first obtain a Work Licence, while on the other hand Mr Holden indicated that if an employee had a difficulty with obtaining a Work Licence he would support the employee in obtaining an exemption from the SSE.

The lawfulness and reasonableness of the requirement for Mr Goldspring to operate vehicles and mobile plant and equipment during the relevant period

[53] The effect of BHP’s application of the common law right to refuse to accept part performance of duties under Mr Goldspring’s contract of employment was that it required him to operate vehicles and mobile plant and equipment in circumstances where he was unable to do so because of the suspension of his Driver Licence and the operation of the Safe Operation of Vehicles SOP. As previously discussed, the common law principle implemented by BHP, is subject to the requirement for particular work to be performed by an employee being lawful and reasonable. If the principle is not subject to that requirement then it is modified to that effect in any event by the operation of clause 4.1 of the Agreement with respect to the tasks an employee can be required to perform being subject to the requirement being reasonable.

[54] The CFMEU contends that once Mr Goldspring became unable to operate vehicles and/or mobile plant and equipment by virtue of the Safe Operation of Vehicles SOP, it ceased to be either lawful or reasonable for BHP to require him to undertake those duties. This submission is based on the proposition that the operation of vehicles and/or mobile equipment was not a duty expressly required by Mr Goldspring’s contract of employment and that Mr Goldspring was only required to undertake such duties by virtue of his obligation to follow reasonable directions.

[55] For reasons set out above, I am of the view that Mr Goldspring’s contract of employment required him to operate vehicles and/or mobile plant and equipment. Regardless of whether such duties were expressly set out in his contract of employment, Mr Goldspring is employed as a Mine Employee in the Mine Operations team on terms and conditions of employment provided for by the predecessor to the Agreement (and later the Agreement). Mr Goldspring is allocated to a functional work area and required to exercise the skills and competencies nominated by BHP as relevant in that area, subject to the lawfulness and reasonableness of the directions given to him. In performing his duties, Mr Goldspring is contractually required to adhere to safe working practices and policies established by the Company from time to time, including the Safe Operation of Vehicles SOP.

[56] A requirement for Mr Goldspring to operate a vehicle and/or mobile plant and equipment in circumstances where he could not comply with the Safe Operation of Vehicles SOP is not unlawful. As BHP correctly submits, prior to the suspension of Mr Goldspring’s Driver Licence it was lawful for the Company to require him to operate vehicles and mobile equipment on site. During the suspension the requirement did not cease to be lawful. What changed was Mr Goldspring’s ability to carry out that lawful instruction.

[57] For the reasons set out above, it is also necessary to consider whether the requirement for Mr Goldspring to operate vehicles and mobile equipment while his Driver Licence was suspended was reasonable. In all of the circumstances of this case, I have come to the conclusion that it was not reasonable for BHP to require Mr Goldspring to drive vehicles or operate mobile equipment during the period where he was unable to comply with the Safe Operation of Vehicles SOP because his Driver Licence was suspended. I have reached this conclusion for the following reasons.

[58] The decision to require Mr Goldspring to drive vehicles and operate mobile equipment during the period his Driver Licence was suspended was made by Mr Holden. Mr Holden also decided that no other work which Mr Goldspring could have undertaken would be accepted by the Company. Mr Holden’s evidence is that he made this decision without considering what, if any, other work was actually available for Mr Goldspring to perform and without informing Mr Goldspring of his options to seek a Work Licence or an exemption. Further, Mr Holden did not ensure that Mr Goldspring was informed of these options and no other manager took steps in this regard. Mr Holden’s evidence established that his dealings with Mr Goldspring were contrary to his usual practice.

[59] In order for Mr Holden to properly implement the right at common law to refuse to accept part performance, it was necessary for Mr Holden to consider whether it was reasonable to require Mr Goldspring to perform work which he was unable to undertake because of the operation of the Safe Operation of Vehicles SOP. Proper consideration of this matter required consideration of whether there were other duties that Mr Goldspring could have performed or ensuring that Mr Goldspring was informed of his options to obtain a Work Licence or to seek an exemption from the SSE. Such consideration could only have been properly undertaken at the point the decision to refuse to accept part performance of the duties under Mr Goldspring’s contract of employment was made.

[60] On Mr Holden’s evidence he did not turn his mind to this matter before he decided to refuse to accept part performance of Mr Goldspring’s obligations under his contract of employment. It is not to the point that Mr Holden now gives evidence that there was no work that Mr Goldspring could have performed without a current Driver Licence. In order to implement the right at common law to refuse to accept part performance of Mr Goldspring’s obligations under his contract of employment, that consideration was required to be undertaken at the time that Mr Holden decided to require Mr Goldspring to drive vehicles and operate mobile plant and equipment while his Driver Licence was suspended.

[61] Mr Holden said that the usual procedure is that either he or the relevant supervisor informs the worker that he or she cannot drive vehicles or operate mobile equipment without an Australian Driver Licence and that the employee should first apply to a court for a Work Licence. Leaving aside the fact that there is no reference to such a step in the Safe Operation of Vehicles SOP, Mr Goldspring was not informed of this option by Mr Holden, Mr Towns or Mr Diefenbach. This is significant given that Mr Holden also said that if the worker advises of a difficulty in obtaining a Work Licence then he will arrange for the worker to have a discussion with the SSE about an exemption and support the worker during this process.

[62] The failure to inform Mr Goldspring of this matter was not explained, but the result was that Mr Holden determined to refuse to accept part performance of duties under Mr Goldspring’s contract of employment, in circumstances where Mr Goldspring was not advised of options by which he could have complied with the Safe Operation of Vehicles SOP by seeking a Work Licence from a Court or an exemption from the SSE. Given the short period of time during which Mr Goldspring’s Driver Licence was suspended, he probably would have had a difficulty obtaining a Work Licence. On his own evidence, in such circumstances, Mr Holden’s normal practice on being informed of such a difficulty would have been to inform Mr Goldspring that he could seek an exemption from the SSE and to support him in this application.

[63] Mr Holden’s evidence was contradictory in that the process he described as being usual, and his oral evidence on this point, was at odds with his assertion that he was not required to tell Mr Goldspring that he could seek an exemption because Mr Goldspring did not apply for an exemption. Mr Holden provided no explanation as to why Mr Goldspring was not informed about the possibility of applying for an exemption from the SSE in accordance with his usual practice and maintained that he told Mr Towns that this was an option. Mr Towns said that Mr Holden did not tell him of this option. Regardless of whose evidence on this point is accepted, I am satisfied that Mr Goldspring was told that he could seek an exemption from the requirements of the Safe Operation of Vehicles SOP and this failure is relevant to the reasonableness of the requirement for Mr Goldspring to drive vehicles and operate mobile equipment while his Driver Licence was suspended.

[64] While I accept that the Safe Operation of Vehicles SOP is available on the Mine’s internal computer system and could have been accessed by Mr Goldspring, the evidence is that the exemption application form is not attached to the SOP as it was to the previous iteration of the Safe Operation of Vehicles SOP. Mr Holden’s practice is to give the form to employees after having a discussion with them. There was no such discussion with Mr Goldspring and Mr Holden did not ascertain whether the usual practice was followed by any other manager or supervisor. The decision as to whether an exemption is to be granted is at the discretion of the SSE. While Mr Holden could have expressed a view about whether Mr Goldspring should have been granted an exemption, his view was not determinative. Had Mr Goldspring applied to the SSE for an exemption and been refused, it is arguable that the Commission could not intervene. That is probably a question for another day. In the present case, the failure of any responsible manager or supervisor to inform Mr Goldspring of the possibility of seeking an exemption from the requirement under the Safe Operation of Vehicles SOP that he hold an Australian Driver Licence resulted in a situation where the requirement for Mr Goldspring to drive vehicles and/or operate mobile plant and equipment while his Driver Licence was suspended was not reasonable.

[65] There is no evidence to suggest that Mr Goldspring would not have applied for an exemption from the SSE had he been made aware of that possibility. Mr Goldspring’s evidence is that he wished to remain at work and did not want to take paid or unpaid leave in the period that his Driver Licence was suspended.

[66] After observing Mr Holden giving evidence I have also formed the view that his decision to require Mr Goldspring to drive vehicles and operate mobile equipment while his Driver Licence was suspended was more about his efforts to dispel the view of employees that they would automatically be granted an exemption by the SSE and to ensure that they suffered consequences as a result of the loss or suspension of their Driver Licence, than it was about the operational requirements of the Mine or occupational health and safety requirements. Mr Holden did not consider the operational requirements of the Mine because he did not turn his mind to whether there was alternative work for Mr Goldspring to perform. It is apparent that Mr Holden decided that he would no longer follow the practice of previous managers whereby they sought and obtained alternative duties for employees in the circumstances faced by Mr Goldspring. While Mr Holden was entitled to decide not to provide alternative duties to Mr Goldspring, he was not entitled to do so without also considering whether the requirement that Mr Goldspring drive vehicles and operate mobile equipment during the period his Driver Licence was suspended, was reasonable. The reasonableness of that requirement could not be considered in isolation from consideration of whether there were alternative duties that Mr Goldspring could have performed.

[67] I also consider that inability on the part of an employee to undertake significant duties that are covered by the employee’s contract of employment does not equate with refusal. Consequently, the case law in relation to “no work as directed, no pay” or refusal to accept part performance, should be applied with caution in circumstances where the employee is unable to perform such duties, but is nonetheless ready and willing to do so. In all of the circumstances of the present case, I do not accept that BHP had the right to apply the common law principle with respect to Mr Goldspring’s inability to undertake all of the duties required under his contract of employment, and misapplied the principle.

Whether BHP had an obligation to provide Mr Goldspring with non-driving work during the period his Driver Licence was suspended

[68] I do not accept that BHP had an automatic obligation to provide Mr Goldspring with work that did not require him to drive vehicles and operate mobile equipment during the period his Driver Licence was suspended. While alternative work was a matter BHP was required to consider in the context of whether the requirement that Mr Goldspring drive vehicles and operate mobile plant and equipment while his Driver Licence was suspended was reasonable, such consideration does not translate to a positive obligation to provide alternative work.

[69] In the present case, the availability of alternative work that Mr Goldspring could have performed – albeit with some operational difficulty to BHP – was required to be considered and the failure of Mr Holden to do so results in circumstances where the direction to perform work that Mr Goldspring was unable to comply with, was not reasonable.

CONCLUSION

[70] The questions for arbitration agreed by the parties in this case have a narrow compass. The first question is confined to the issue of whether BHP had an obligation to provide Mr Goldspring with work other than work which involved the operation of vehicles and mobile equipment. The second question is confined to whether in all of the circumstances Mr Goldspring should have been paid for the period when his Driver Licence was suspended.

[71] While the questions for arbitration are not directed to the broad question of whether Mr Goldspring was dealt with fairly or reasonably, the issue of reasonableness arises in considering the application of the common law right that BHP asserts it relied on in refusing to accept part performance by Mr Goldspring of obligations under his contract of employment or the modification of that right by the terms of clause 4.1 of the Agreement.

[72] I have concluded that BHP has a right at common law to refuse to accept part performance of work by an employee and to direct that no work is performed for the period when the employee is unable to perform ordinary duties. That right is not excluded by the terms of the Agreement. However, the right is subject to the work that the employee is unable to perform being required under the employee’s contract of employment; significant to the operation of the Mine; and that the direction to perform the particular work is lawful and reasonable. The right is also modified by the terms of the Agreement which require that a direction to an employee to perform particular work is reasonable.

[73] In deciding whether it is reasonable to require an employee to undertake work that he or she is unable to perform, regardless of the reason for the inability, BHP is required to consider whether there is other work that the employee could reasonably perform. In such consideration, BHP is not required to create work, redesign the way in which work is performed or to accept a new and significant term to the employment contract.

[74] In the particular circumstances of this case, BHP does not have the right to refuse to accept part performance of Mr Goldspring’s contract of employment because the direction that he perform particular work which he was unable to comply with was not reasonable. Accordingly, I answer the questions for arbitration as follows:

Question 1:

In all of the circumstances, did the employer have an obligation to provide to Mr Goldspring work, other than work which involved the operation of vehicles, or mobile equipment on site consistent with SOP (GRM SOP 0027), during the relevant period?

Answer: No.

Question 2:

In all of the circumstances, should Mr Goldspring have been paid for the relevant period?

Answer: Yes.

DEPUTY PRESIDENT

Appearances:

Mr C. Massey of Counsel instructed by Mr R. Anderson of the CFMEU for the Applicant.

Mr I. Humphries and Ms E. Mayr of Ashurst for the Respondent.

Hearing details:

2017.

30 October.

Mackay.

 1   Exhibit A5 – Statement of Thomas Goldspring; and Exhibit A6 – Reply Statement of Thomas Goldspring.

 2   Exhibit A3 – Statement of Simon Royce West; and Exhibit A4 – Reply Statement of Simon Royce West.

 3   Exhibit A1 – Statement of Russell Miles Robertson; and Exhibit A2 – Reply Statement of Russell Miles Robertson.

 4   Exhibit R1 – Statement of Scott Diefenbach.

 5   Exhibit R2 – Statement of Joshua Robert Towns

 6   Exhibit R3 – Statement of Bradley Wayne Holden.

 7   Exhibit R3 – Annexure “BH-1”.

 8   Exhibit R3 – Statement of Bradley Wayne Holden Annexure “BH4”.

 9   Exhibit R3 – Statement of Bradley Wayne Holden Annexure “BH11”.

 10   Transcript of proceedings Monday 30 October 2017 PN432.

 11   Statement of Thomas Goldspring Annexure “TG-01”.

 12   Statement of Bradley Wayne Holden Annexure “BH-10”.

 13   Statement of Thomas Goldspring paras 11-15.

 14   Statement of Thomas Goldspring – Annexure TG02

 15   Exhibit A5 Statement of Thomas Goldspring para 32.

 16   Transcript of proceedings Monday 30 October 2017 PN66-68.

 17   Transcript of proceedings Monday 30 October 2017 PN425.

 18   (1946) 72 CLR 435.

 19   Ibid at 465.

 20   (1987) 10 NSWLR 587.

 21   Ibid at 595.

 22   [2010] FCAFC 83 270 ALR 414 at 435.

 23   Ibid at [26].

 24   Ibid at [24].

 25   Ibid at [15] per Marshall and Cowdroy JJ.

 26   Ibid at [73].

 27   (1980) 37 ALR 20.

 28   [1984] VR 257.

 29   [1975] AR (NSW) 504.

 30   See analysis in Welbourne v Australian Postal Commission op. cit. per Fullagher J.

 31   [1980] IAS (CR) 767.

 32   [1982] 3 IR 101.

 33   Ibid at 103 per Cahill J.

 34   Ibid at 105.

 35   Ibid at 104.

 36   [1977] VR 87.

 37   Ibid at 92.

 38   Ibid at 93.

 39   Ibid at 95.

 40   [1975] AR (NSW) 504.

 41   Ibid at 514; New South Wales Teachers’ Federation v Department of Education; Re Quality Education Campaign [1980] AR (NSW) 101 at 103.

 42   (1946) 72 CLR 435 at 466.

 43   Electrical Trades Union of Australia v Illawarra County Council (1982) IR 255at 260; Spotless Catering Service Ltd v Federated Liquor and Allied Industries Employees Union of Australia, NSW Branch (1988) 25 IR 255 at 260.

 44   [2005] HCA 22 – 215 ALR 87.

 45   (2010) 199 IR 40.

 46   Blackadder v Ramsay Butchering Service Pty Ltd (2005) 215 ALR 87 at 108 per Callinan Heydon JJ; Quinn v Overland (2010) 199 IR 40 at 62 per Bromberg J.

 47   McPherson op. cit. at [93] per Buchanan J citing Gapes v Commercial Bank of Australia Limited and at [95] and [96] citing Csomore and Another v Public Service Board of New South Wales.

 48   (1998) 86 IR 340.

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