Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd

The Federal Court of Australia considered an appeal by the Construction, Forestry, Mining and Energy Union against a decision of the Federal Circuit Court that the removal of board and lodging provided by the respondent, Mammoet Australia Pty Ltd, to certain employees did not constitute adverse action under the Fair Work Act 2009. The dispute arose from the respondent’s provision of accommodation to employees working on the Woodside Pluto Liquefied Natural Gas Project in Western Australia. The employees in question were on "fly in/fly out" arrangements and were either provided with accommodation or a living away from home allowance. When the respondent removed the accommodation, the Union argued that this constituted adverse action under the Fair Work Act. The primary issue before the Court was whether the provision of accommodation constituted "payment" within the meaning of section 470(1) of the Act and whether the removal of such accommodation constituted adverse action under section 342(1).

The Court examined the meaning of "providing" accommodation and its implications under the Fair Work Act. It held that the provision of board and lodging was indeed a form of payment and that the removal of such accommodation did not constitute adverse action as it was authorised by section 342(3) of the Act. The Court found that the removal of accommodation was not adverse action because it was not a detriment to the employees as defined in section 789 of the Act, given that the employees were still provided with alternative forms of payment. The Court also noted that the agreement in place provided for the payment of a living away from home allowance, which was sufficient to cover the employees' living expenses.

The Court dismissed the appeal, holding that the Federal Magistrate was correct in finding that the removal of accommodation did not constitute adverse action under the Fair Work Act. The Court also ordered that the appellant pay the respondent's costs of the appeal.