The resources sector union has been granted leave to appeal a decision allowing workers at Woodside's Pluto gas plant to be denied accommodation during wage-related industrial action.
In April 2010, the Construction, Forestry, Mining and Energy Union (CFMEU) advised Mammoet Australia Pty Ltd that its fly-in fly-out crane and forklift operators at the Pilbara project would stop work for 28 days while a new enterprise agreement was negotiated.
Mammoet responded by locking the workers out, withdrawing their board and lodging.
The company argued in the Federal Court that it was not obliged to provide accommodation because a section of the Fair Work Act 2009 provided that if an employee engaged in "protected industrial action ... the employer must not make a payment to an employee in relation to the total duration of the industrial action".
Mammoet's contention was that the accommodation constituted payment, given it had elected to provide lodgings instead of a living away from home allowance under the terms of the existing enterprise agreement.
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The CFMEU unsuccessfully argued that Mammoet had breached both the terms of the agreement and the Act.
But on Wednesday, the High Court of Australia unanimously deemed that the provision of accommodation would not have constituted a "payment" during the industrial action.
It held that when the Act referred to "payment", it meant a cash payment and not simply the transfer of any economic benefit by an employer to an employee.
The court also dismissed Mammoet's argument that because the employees were not ready, willing and available to work, they were not entitled to accommodation under the terms of the agreement.
