The Full Bench of the Fair Work Commission has rejected a CFMEU demand for an employer to either continue paying or find alternative work for an employee who had lost his driving licence. Instead, the Full Bench confirmed employees have an obligation to be ready, willing and able to perform the work they have been engaged to perform, and any loss of essential licences or permits to work would only entitle them to access accrued leave or leave without pay.
Thomas Goldspring was employed by BHP in a mine where his position required a driver’s licence. In June 2016 he was caught driving with a suspended licence and a month later fined and his licence suspended for 1 month. On reporting to his workplace, the issue arose about his ability to perform his normal work and the decision was made by BHP that as there was no suitable work for him to perform. He was suspended, with access to accrued leave and then went on leave without pay until his licence was reinstated. The total loss of pay incurred was $6,713.33.
Deputy President Asbury initially found in favour of the employee, finding a clause in his workplace agreement requiring employer directions to be reasonable was preferred to employer’s rights under common law to refuse alternative duties.
On appeal, the Full Bench confirmed employees must bear the consequences if they are not able to perform their contracted duties due to their own actions such as loss of necessary licences, permits or other work qualifications.
The Full Bench decided it is “a fundamental aspect of the work-wages bargain that the employee is ready and able, as well as willing, to provide the services required by the contract of employment”. This meant that as Mr Goldspring had rendered himself unable to work as directed or perform his ordinary duties, he was only entitled to be payments of accrued leave or LWOP until he again became able to perform his normal work duties.
Tips for Employers
Employers have firm common law rights to insist on employees being able to fully carry out their contracted duties. If they are not able to do this, then there is a right to stand down, or even terminate, the employee, provided employers act in a reasonable manner. This means that while the right to stand down employees without pay can be done fairly readily, terminating staff will normally only warranted where an extended period of absence is involved ie employee sentenced to incarceration or loss of licences for an extended period. Each case should be carefully considered on its own merits.
BHP Coal Pt/L t.a BHP Billiton v CFMEU  FBCFB 4148 (27 July 2018)
Graham Evans is the Managing Partner of O'Connell The Employment Law Specialists, a Sydney-based employment law firm. He has over 20 years' experience in assisting employers in dealing with complex issues within their workplace.