Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd

The High Court of Australia considered a dispute between the Construction, Forestry, Mining and Energy Union (CFMMEU) and BHP Coal Pty Ltd concerning the interpretation of a certified agreement. The core of the disagreement revolved around whether BHP Coal was entitled to deduct from employee wages amounts paid to employees for periods of absence from work due to illness or injury, where those payments were made pursuant to the terms of the certified agreement.

The central legal issue before the High Court was whether the payments made by BHP Coal to its employees for periods of illness or injury, as stipulated in the certified agreement, constituted "wages" for the purposes of section 539 of the *Fair Work Act 2009* (Cth). This section deals with the recovery of amounts that are payable to an employee under a registered instrument, such as a certified agreement, but have not been paid. The question was whether the employer could offset these contractual payments against amounts it was otherwise liable to pay under the Act.

The High Court held that the payments made by BHP Coal for periods of illness or injury were indeed "wages" within the meaning of section 539 of the *Fair Work Act 2009*. The Court reasoned that the certified agreement created an obligation on BHP Coal to pay its employees for these periods, and these payments were remuneration for their employment. Therefore, BHP Coal was entitled to deduct these amounts from any liability it had to pay under section 539, as the payments had already satisfied, in whole or in part, the amounts that would otherwise have been recoverable. The Court affirmed that the purpose of section 539 was to ensure that employees received what was contractually or statutorily due to them, and that payments already made pursuant to a valid agreement should be taken into account.