Macpherson v Coal and Allied Mining Services Pty Ltd (No.2)

In Macpherson v Coal and Allied Mining Services Pty Ltd (No.2), the applicant, Mr. Macpherson, challenged the respondent’s introduction of a new roster that required him to work consecutive 12-hour shifts, totalling 44 hours per week. Mr. Macpherson argued that the additional hours were unreasonable, impacting his health, safety, and family life, and that the respondent failed to adequately consult him regarding the changes, as stipulated in their industrial agreement. The case raised questions about the reasonableness of the roster changes and the respondent’s right to stand down Mr. Macpherson for refusing to work the new roster.

The court examined whether the respondent’s introduction of the new roster was reasonable under the circumstances and whether it complied with the industrial agreement's consultation provisions. The court also considered the legality of the respondent's decision to stand down Mr. Macpherson, assessing whether the employer had a common law right to discipline an employee for not complying with a lawful command and whether Mr. Macpherson was entitled to salary during his suspension. The analysis included an evaluation of the impact of the new roster on Mr. Macpherson's health, safety, and family life, as well as the adequacy of the consultation process as per the industrial agreement.

Upon reviewing the evidence and arguments presented, the court found that the respondent had breached section 691B of the Workplace Relations Act 1996 by standing down Mr. Macpherson. The court determined that while the employer had a right to discipline employees for non-compliance with lawful commands, standing down Mr. Macpherson without adequate consultation and consideration of his health and family life was unlawful. The court held that Mr. Macpherson was entitled to be paid for the period of his suspension. The decision on the penalty for the breach was reserved for a future hearing.

The court issued a declaration that the respondent breached section 691B of the Workplace Relations Act 1996 by standing down Mr. Macpherson on 13 November 2008. The court also decided that Mr. Macpherson was entitled to payment for the duration of his suspension. The penalty for the breach was reserved pending a further hearing. The application was dismissed in all other respects.