Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd

The High Court of Australia heard an appeal concerning the Construction Forestry Mining and Energy Union and Mammoet Australia Pty Ltd. The dispute arose when Mammoet Australia ceased providing accommodation to employees during periods of protected industrial action, despite the employees being classified as "Distant Workers" under their enterprise agreement. The agreement stipulated that Distant Workers were entitled to either suitable board and lodging or a living away from home allowance.

The central legal issues before the High Court were whether the provision of accommodation constituted a "payment to an employee in relation to the total duration of the industrial action" under section 470(1) of the *Fair Work Act 2009* (Cth), and whether employees were entitled to accommodation under the terms of their enterprise agreement when they were not ready, willing, and available to work. The union argued that ceasing to provide accommodation during protected industrial action was unlawful adverse action and a contravention of the Act.

The High Court reasoned that the employer's decision to withdraw accommodation was not an automatic legal consequence of the employees' conduct but rather a deliberate response to their protected industrial action. The Court found that this action by the employer was a choice, which section 340(1) of the *Fair Work Act* prohibited. Therefore, the employer's refusal to provide accommodation was considered a contravention of the Act, irrespective of whether the employees' actions breached the enterprise agreement.

Consequently, the High Court allowed the appeal, set aside the orders of the Federal Court of Australia, and remitted the application to the Federal Circuit Court of Australia to be heard and determined according to law.