Fair Work Act 2009

s.604 - Appeal of decisions

Construction, Forestry, Maritime, Mining and Energy Union

Appeal against decision [2018] FWC 1453 of Deputy President Asbury at Brisbane on 9 March 2018 in matter number C2016/6024.

[1] BHP Coal Pty Ltd trading as BHP Billiton (BHP) has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Asbury issued on 9 March 2018[1] (Decision). The Decision dealt with a dispute pursuant to the dispute settlement procedure in clause 37 of the BMA Enterprise Agreement 2012 (the Agreement). The dispute concerned a period of three weeks during which a BHP employee, Mr Thomas Goldspring, was not permitted to attend work and was not paid because his driver's license was suspended. Mr Goldspring, represented by his union, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), contended that he should have been paid pursuant to the Agreement during this period.

[2] The relevant facts pertaining to the dispute may be summarised as follows. Mr Goldspring was an employee of BHP at the Goonyella Riverside Mine in Queensland. His terms and conditions of employment, contained in the original offer of employment to him, relevantly required him to:

• perform the duties in his job description as advised to him from time to time;

• comply with all lawful and reasonable instructions given to him in the course of his employment;

• comply with BHP's policies to perform duties in a manner which observed any legal requirements and which adhered to safe working practices and policies established by BHP;

• warrant that he held the qualifications and work experience advised by him to BHP prior to commencing employment;

• maintain all necessary qualifications, certificates, permits, licences and the like which enabled him to fulfil his duties, and to notify BHP if any such qualifications, certificates, permits, licences etc. were cancelled, revoked or were no longer valid, with failure to do so possibly resulting in the termination of his employment; and

• comply with all the Company's policies, standards and procedures as amended from time to time, with a failure to comply possibly resulting in disciplinary action including termination of his employment.

[3] At all relevant times Mr Goldspring worked in the Prestrip Department at the Mine and his work duties primarily involved the on-site operation of vehicles and mobile equipment. At the Mine, BHP had adopted a standard operating procedure, GRM SOP 0027, for the use of vehicles and mobile plant equipment (the SOP) pursuant to s 76 of the Coal Mining Safety and Health Regulation 2001 (Qld). The SOP relevantly required as follows:

"All operators of vehicles and mobile equipment must hold a current Australian Driver license. Loss of license must be reported immediately to the Supervisor. Approval from the SSE or delegate is required for the Operator to continue to operate vehicles or mobile equipment on site."

[4] On 1 June 2016 Mr Goldspring was pulled over by Queensland Police for a random breath test, and when his driving licence was checked it was discovered that his licence had been suspended since 6 March 2016 due to non-payment of fines. Mr Goldspring successfully applied for the suspension to be lifted, but on 9 August 2016 he was fined $300 and had his licence suspended for one month due to him driving while suspended.

[5] Mr Goldspring was not rostered to work when the period of suspension commenced. He returned to work on 12 August 2016. The issue of the suspension of his licence was discussed with his supervisor, Mr Diefenbach. There was some dispute about the content of those discussions and when they occurred, but it was not in dispute that Mr Goldspring was not permitted to start work on 12 August 2016 and was told by Mr Diefenbach that he would not be able to perform his usual duties. Mr Goldspring was absent from work on sick leave on 13 August 2016, was again not permitted to work on 14 August 2016, and then decided to take annual leave for the two remaining shifts of his roster. He was then rostered-off for four or five days.

[6] Mr Diefenbach sought advice from his supervisor, Mr Towns, about Mr Goldspring's position, and was told on 14 August 2016 that the instruction from Mr Holden, the Production Overburden Manager, was that Mr Goldspring:

• was unable to perform his duties in the Pre-strip Department because he did not have a current driver licence and there was no work for him to perform; and

• could not return to work until his driver licence was reinstated and in the meantime could use all of his accrued annual leave and then go on unpaid leave.

[7] There was some dispute in the evidence before the Deputy President concerning when Mr Holden's instructions were conveyed by Mr Diefenbach to Mr Goldspring and the terms in which they were conveyed. Mr Diefenbach said that he telephoned Mr Goldspring and informed him of the position on 15 August 2016; Mr Goldspring said he was informed of the position when he returned to work on 22 August 2016. In any event, it was not in dispute that Mr Goldspring was not permitted to resume his duties and was sent home, and subsequently he did not attend work and was not paid until the period of his licence suspension ended. The total loss of pay involved was $6,713.33.

[8] Mr Goldspring did not apply for approval to continue operating vehicles and mobile equipment without a licence pursuant to the SOP, although there was some dispute about whether he was told he could apply for such approval. There was a dispute about the extent to which Mr Goldspring might have been allocated alternative duties rather than being sent home; in evidence before the Deputy President he and other CFMMEU witnesses identified a number of other duties he could have performed, but Mr Holden said there were limited duties able to be performed that did not require a driving licence and he needed every member of his crew to be able to operate vehicles and mobile equipment.

[9] Clause 37.1 of the Agreement relevantly requires that "...any disputes arising in relation to the NES; or pertaining to this Agreement; ... or arising in the course of employment" be dealt with in accordance with the procedure prescribed by clause 37. Clause 37.16 provides that if a dispute remains unresolved after the prior specified steps in the procedure have been exhausted (or, by agreement, bypassed) the Commission may conciliate in relation to the dispute and, if conciliation is unsuccessful, "arbitrate in relation to the matter". In the case of Mr Goldspring's dispute, the parties agreed that the Commission was empowered to arbitrate in relation to it and that the arbitration should involve the determination by the Deputy President of the following two questions:

1. In all of the circumstances, did the employer have an obligation to provide to Mr Goldspring work, other than work which involved the operation of vehicles, or mobile equipment on site consistent with the SOP (GRM SOP 0027), during the relevant period?

2. In all of the circumstances, should Mr Goldspring have been paid for the relevant period?

[10] In the Decision the Deputy President answered "No" to the first question and "Yes" to the second question. BHP's appeal challenges the Deputy President's answer to the second question only. In its appeal notice, BHP contends that the correct answer to the second question was "No" and that the Deputy President erred in answering otherwise. There was no cross-appeal or notice of contention which challenged the answer given to the first question.

[11] At the hearing before the Deputy President, the substantial premise of the parties' submissions was that the questions posed for determination were to be answered by reference to the rights of BHP as an employer under the Agreement and, to the extent not overridden by the Agreement, at common law. First, clause 3.7 of the Agreement confers on BHP the discretion to suspend an employee "without loss of pay" while it conducted an investigation into conduct which might lead to disciplinary action.

[12] Second, clause 3.8 empowers BHP to stand down employees without pay in the following terms:

(1) Part or all of a shift in the following circumstances:

(2) Part or all of a shift or shifts if the Employee cannot be usefully employed in the Employee's usual classification because of industrial action.

(b) In addition to the circumstances outlined above, where a disciplinary procedure provides for a suspension period as part of the range of penalties available, this sub-clause does not limit the Company's ability to stand down an Employee for the duration specified in the relevant disciplinary procedure.

(c) The Company may stand down an Employee during any period in which the Employee cannot usefully be employed because of one of the following circumstances:

(1) A breakdown of machinery or equipment that has lasted for more than four consecutive working days, if the Company cannot reasonably be held responsible for the break down; or

(2) A stoppage of work for any cause that has lasted more than fourteen consecutive working days for which the Company cannot be held reasonably responsible.

(d) The Company will take all reasonable steps to minimise the need for standing down Employees under these circumstances, including where practical, carrying out training.

(e) The Company is not required to pay an Employee whilst they are stood down.

(f) Employees who have been stood down under the circumstances outlined in clause 3.8(c) may request to take outstanding leave entitlements. If the Employees does not request to take outstanding leave entitlements or does not have adequate accrued entitlements, they may be stood down without payment.

(g) The continuous service of an Employee who is stood down under this clause is dealt with in accordance with clause 47.2.

[13] Third, clause 4, Employee Duties, deals with the various work requirements of employees under the Agreement. Clauses 4.1 and 4.4 are relevant to Mr Goldspring's dispute and provide:

4.1 Employees will perform such tasks as reasonably required by the Company without any demarcation of duties while complying with all legal and statutory obligations. In this regard, Employees accept that the Company can require the performance of any operational, mining, maintenance or technical tasks that Employees are trained, competent and/or authorised to perform. The Company will not allocate tasks in a manner which promotes deskilling.

4.4 Employees are required to attend for work in accordance with their roster and work as directed. An Employee will only be entitled to be paid for time worked, unless taking authorised leave.

[14] In the Decision the Deputy President rehearsed at some length the background facts concerning the introduction and operation of the SOP, the nature and duties of Mr Goldspring's employment and the circumstances which led to him being stood down from work without pay. The Deputy President then discussed the common law principles concerning whether an employer had an obligation to provide an employee with work, the right of an employer to refuse selective performance of duties or attendance at work by the employee, and the right of an employer to stand down or suspend an employee.[2] Consideration was given as to whether the Agreement modified any of BHP's common law rights in these respect, and the Deputy President concluded that "the Agreement does not compel a construction to the effect that it takes away or excludes BHP's right at common law to refuse to accept part performance of an employee's obligations under a contract of employment."[3] However the Deputy President then said:

"[110] However, that is not the end of the matter. While the Agreement does not exclude the application of BHP's common law right to refuse to accept part performance of work required by Mr Goldspring's contract of employment, it is also necessary to consider whether the Agreement modifies that right. In my view the Agreement does modify the right of BHP to apply the common law principle, by virtue of clause 4.1 which provides that employees will perform such tasks as are reasonably required by the Company. Mr Goldspring's written contract of employment also requires him to comply with all lawful and reasonable instructions given to him in the course of his employment.

[111] The present case is not a case where BHP required certain work to be performed by Mr Goldspring and he refused to perform that work. Mr Goldspring did not refuse to perform any of the work required under his contract of employment. Rather, he was unable to perform some of that work because of the loss of his Driver Licence, which meant that he was unable to comply with the requirements of the Safe Operation of Vehicles SOP which applied at the Mine. BHA accepts that Mr Goldspring was ready and willing to work in accordance with his contract of employment but maintains that he was not able to do so.

[112] Effectively, BHP required Mr Goldspring to undertake the task of driving vehicles and operating mobile plant/equipment when he was unable to do so. Further, BHP treated Mr Goldspring's inability to drive vehicles and operate mobile plant/equipment during the period his Driver Licence was suspended as part performance of his employment contract. BHP also maintains that by asserting that he should have been provided with alternative work that did not involve the operation of vehicles, Mr Goldspring is attempting to include an additional and significant term to his contract, requiring BHP to accept part performance. BHP maintains that it is not required to accept part performance, and is entitled to refuse to accept any other work while Mr Goldspring's inability to operate vehicles and mobile plant/equipment remains in effect.

[113] As previously noted, it is relevant to the exercise of the common law right purported to have been relied on by BHP to refuse to accept part performance by Mr Goldspring, that the direction that he perform particular work - driving vehicles and operating mobile plant/equipment - is lawful and reasonable. Even if the cases do not establish such a principle, clause 4.1 of the Agreement provides that any requirement for an employee to perform particular tasks must be reasonable and in my view this modifies the application of the common law principle in the present case."

[15] The Deputy President then gave consideration to the duties required under Mr Goldspring's contract of employment, and in that respect stated the following conclusions:

"[118] Notwithstanding that there is no written position description, it is clear from the evidence that the duties Mr Goldspring was performing at the time his Driver Licence was suspended required him to operate vehicles and mobile plant and equipment and that these duties were integral to his role as a Mine Employee in the Mine Operation Team. Mr Goldspring was working in the Prestrip Department and as such was required to operate rear dump trucks, graders, dozers and excavators. During the suspension period, Mr Goldspring was unable to undertake his normal duties by virtue of the operation of the Safe Operation of Vehicles SOP, unless he obtained an exemption from the SSE. Mr Goldspring did not have an exemption.

[122] For these reasons, I find that Mr Goldspring was required by his contract of employment to have the ability to operate vehicles or mobile plant or equipment. Furthermore, Mr Goldspring was required to hold and continue to hold any licence, permit or qualification required of him by the Company to carry out his duties including as implemented from time to time under standard operating procedures or the workplace health and safety systems implemented at the Mine."

[16] The Deputy President then gave consideration to "The lawfulness and reasonableness of the requirement for Mr Goldspring to operate vehicles and mobile plant and equipment during the relevant period".[4] The conclusion that Mr Goldspring's contract of employment "required him to operate vehicles and/or mobile plant and equipment" was restated,[5] but the Deputy President then stated the conclusion that the requirement for Mr Goldspring to perform this work was, while lawful, not reasonable:

"[130] A requirement for Mr Goldspring to operate a vehicle and/or mobile plant and equipment in circumstances where he could not comply with the Safe Operation of Vehicles SOP is not unlawful. As BHP correctly submits, prior to the suspension of Mr Goldspring's Driver Licence it was lawful for the Company to require him to operate vehicles and mobile equipment on site. During the suspension the requirement did not cease to be lawful. What changed was Mr Goldspring's ability to carry out that lawful instruction.

[131] For the reasons set out above, it is also necessary to consider whether the requirement for Mr Goldspring to operate vehicles and mobile equipment while his Driver Licence was suspended was reasonable. In all of the circumstances of this case, I have come to the conclusion that it was not reasonable for BHP to require Mr Goldspring to drive vehicles or operate mobile equipment during the period where he was unable to comply with the Safe Operation of Vehicles SOP because his Driver Licence was suspended."

[17] The reasons given for this conclusion included that Mr Holden did not consider whether it was reasonable to require Mr Goldspring to perform work he was unable to performbecause of the operation of the SOP or whether there were other duties Mr Goldspring might perform, and did not ensure Mr Goldspring was informed that he could seek an exemption under the SOP. Consideration of these matters, the Deputy President found, was necessary in order to implement the right at common law to refuse part performance, and these circumstances rendered unreasonable the requirement that Mr Goldspring drive vehicles and operate mobile equipment while his licence was suspended.[6] The Deputy President then said:

"[141] I also consider that inability on the part of an employee to undertake significant duties that are covered by the employee's contract of employment does not equate with refusal. Consequently, the case law in relation to "no work as directed, no pay" or refusal to accept part performance, should be applied with caution in circumstances where the employee is unable to perform such duties, but is nonetheless ready and willing to do so. In all of the circumstances of the present case, I do not accept that BHP had the right to apply the common law principle with respect to Mr Goldspring's inability to undertake all of the duties required under his contract of employment, and misapplied the principle."

[18] The Deputy President then stated the following overall conclusions:

"[144] The questions for arbitration agreed by the parties in this case have a narrow compass. The first question is confined to the issue of whether BHP had an obligation to provide Mr Goldspring with work other than work which involved the operation of vehicles and mobile equipment. The second question is confined to whether in all of the circumstances Mr Goldspring should have been paid for the period when his Driver Licence was suspended.

[145] While the questions for arbitration are not directed to the broad question of whether Mr Goldspring was dealt with fairly or reasonably, the issue of reasonableness arises in considering the application of the common law right that BHP asserts it relied on in refusing to accept part performance by Mr Goldspring of obligations under his contract of employment or the modification of that right by the terms of clause 4.1 of the Agreement.

[146] I have concluded that BHP has a right at common law to refuse to accept part performance of work by an employee and to direct that no work is performed for the period when the employee is unable to perform ordinary duties. That right is not excluded by the terms of the Agreement. However, the right is subject to the work that the employee is unable to perform being required under the employee's contract of employment; significant to the operation of the Mine; and that the direction to perform the particular work is lawful and reasonable. The right is also modified by the terms of the Agreement which require that a direction to an employee to perform particular work is reasonable.

[147] In deciding whether it is reasonable to require an employee to undertake work that he or she is unable to perform, regardless of the reason for the inability, BHP is required to consider whether there is other work that the employee could reasonably perform. In such consideration, BHP is not required to create work, redesign the way in which work is performed or to accept a new and significant term to the employment contract.

[148] In the particular circumstances of this case, BHP does not have the right to refuse to accept part performance of Mr Goldspring's contract of employment because the direction that he perform particular work which he was unable to comply with was not reasonable..."

[19] The Deputy President then stated her answers to the two questions.

[20] BHP submitted that while the Deputy President was correct to conclude that BHP had no obligation to provide Mr Goldspring with work and the Agreement did not exclude BHP's right at common law to refuse to accept the part performance of an employee's obligations under their contract of employment, nonetheless the answer given to the second question was in error in the following respects:

• the determinative issue was not whether a direction for Mr Goldspring to undertake the tasks of driving vehicles and operating mobile plant/equipment was reasonable, but rather whether Mr Goldspring's contract required him to perform these tasks;

• there was no direction, whether under clause 4.1 or otherwise, and therefore no need to consider whether the direction fell within the scope of the contract;

• it necessarily followed from the findings made by the Deputy President concerning the requirement under his contract of employment for Mr Goldspring to hold a driver licence and to perform work driving vehicles and operating mobile plant/equipment, which were not challenged, that he could not meet his contractual obligations and therefore did not have an entitlement to be paid;

• even if clause 4.1 was relevant, it was misconstrued because it did not delimit the work that BHP could require of its employees, but rather identified the duties imposed by employees;

• the Agreement did not contain any obligation for BHP to consider whether or what part of an employee's performance might reasonably be accepted, and no provision in the Agreement to this effect was identified;

• even if BHP did require Mr Goldspring to drive vehicles and operate mobile plant/equipment while his licence was suspended, this was reasonable having regard to the findings made concerning the requirements of his contract of employment.

[21] The CFMMEU submitted that two issues arose in the appeal. The first was whether clause 4.1 modified the scope of Mr Goldspring's duties as an employee and that, if the Deputy President's conclusion in this respect was correct, the appeal had to fail. The second was whether the principle of "no work as directed, no pay" applied to an involuntary inability to perform part of an employee's duties for a temporary period. In this respect, where this did not constitute a repudiation of the contract accepted by the employer, the employer had no right to treat the contract as suspended during the temporary period.

[22] In respect of the first identified issue, the CFMMEU submitted that:

• the Deputy President has correctly identified that an employee was still entitled to payment if they were unwilling or unable to perform particular work that was not lawful or reasonable in the context of their employment;

• the purpose of clause 4.1 was to define the scope of an employee's duties, and they were described as such tasks which were reasonably required by the employer;

• consideration of whether a task fell within the scope of an employee's duty required an assessment of whether it was reasonable in all the circumstances;

• accordingly Mr Goldspring was only required to drive vehicles and operate mobile plant and equipment to the extent that it was reasonable for him to do so, and there was no basis to impeach the findings that Mr Holden's direction in this respect was not reasonable.

[23] To the extent that it was necessary to determine the second issue, the CFMMEU submitted that the authorities on the "no work as directed, no pay" principle related to involuntary non-performance of duties by way of the imposition of work bans, and were not relevant. In the case of involuntary non-performance of part of the duties, the orthodox approach was to consider if this was a repudiation of the contract which the employer could accept. Here, if there was a repudiation, BHP elected not to accept it; instead it affirmed the contract and directed Mr Goldspring not to attend work. This direction, the CFMMEU submitted, was complied with, and Mr Goldspring remained ready and willing to serve, and was therefore entitled to payment. Alternatively the exclusion from the workplace was not justified by the contract or the Agreement, and BHP was bound to pay Mr Goldspring because it was BHP's wrongful act which prevented the work from being performed.

[24] We consider that the Deputy President erred in her consideration of the second question posed for determination in two respects. The first error was factual in nature. As earlier set out, the Deputy President proceeded in her reasoning on the premise that BHP had required Mr Goldspring to operate vehicles and mobile plant and equipment in circumstances where he was unable to do so in accordance with the SOP because of the suspension of his driver license.[7] From this premise, the Deputy President reasoned that BHP had issued Mr Goldspring with a direction that, while lawful[8], was not reasonable,[9] and in that circumstance BHP did not have the right to refuse part performance of Mr Goldspring's contract of employment[10] and that Mr Goldspring was entitled to payment.[11]

[25] The evidence did not disclose that BHP ever directed Mr Goldspring to drive vehicles or operate mobile equipment during the period his licence was suspended. On either version of the relevant events, it was precisely the opposite which occurred. Mr Diefenbach's evidence, as recited in the Decision, was that on 15 August 2016 he said to Mr Goldspring:

"While you don't have a licence you won't be able to operate machinery. I don't have any other duties that you can do in prestrip if you can't operate machinery or drive vehicles so I don't require you at work. You'll have to go on unpaid leave for the period of time that you're unable to work and you'll need to use a lot of your entitlements."[12]

[26] Mr Goldspring's evidence was that Mr Diefenbach approached him on 22 August 2016 when he returned to work and told him that he had to leave the site immediately because Mr Holden had decided to send him home,[13] that he had no option but to go home and he could take any leave he had accrued but would otherwise not be paid for the suspension period, and he would not be permitted to perform any work until after the end of the suspension period.[14] It is clear therefore that, far from directing or requiring Mr Goldspring to drive vehicles or operate mobile equipment, BHP communicated to him that because he was unable to perform these duties and it had no other duties for him to perform, he was not to attend for work and would not be paid for the relevant period unless he had leave entitlements he could access. The Deputy President's analysis, with respect, proceeded on an incorrect factual premise. No question of whether BHP issued an unreasonable direction for Mr Goldspring to perform his normal duties arose, and an entitlement to payment could not be established on this basis.

[27] Second, even if it could be said that BHP in some sense required Mr Goldspring to drive a vehicle and operate mobile plant and equipment during the licence suspension period, the conclusion that this requirement was not reasonable proceeded on a misconstruction and misapplication of clause 4.1 of the Agreement. The Deputy President reasoned that, because clause 4.1 stipulated that employees were to perform such tasks as might reasonably be required by BHP, BHP was therefore bound to accept part performance of an employee's contracted duties in the circumstance where the employee had lost the capacity to perform his primary duties (other than by illness or injury) and thus could not reasonably be required to perform them.[15] From this premise, the Deputy President reached the conclusion that BHP was subject to a requirement that it consider in the circumstance described whether there was alternative work which the employee could perform.[16] That conclusion was reached notwithstanding that the Deputy President had concluded, in answer to the first question posed for determination, that BHP did not have any obligation to provide Mr Goldspring with alternative work.

[28] That approach to clause 4.1 effectively turns it on its head, as BHP submitted. Clause 4.1 does not impose any obligation upon BHP; rather it is concerned with the scope of duties which employees are obliged to perform. In plain terms, it requires employees to perform any of a wide range of identified tasks which the employee is trained, competent and authorised to perform, provided that the allocation of duties does not promote deskilling. It is a type of provision which became common in industrial instruments from the late 1980s as part of the restructuring of awards with the purpose of encouraging multi-skilling and multi-tasking and removing functional demarcations. As such, it widens rather than limits the scope of duties of the employee. There is nothing in the text of the provision to support the proposition that, because the obligation imposed upon the employee under clause 4.1 is subject to any work requirement being reasonable, employees are excused from the obligation to perform their contracted normal duties because they have rendered themselves incapable of lawfully doing so through the loss of a necessary licence, permit or other qualification.

[29] In the context of the interpretation and application of an award provision requiring compliance with the "reasonable instructions of the employer or his representative", Dixon J (as he then was) said in R v Darling Island Stevedoring & Lighterage Co Ltd:[17]

"Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. Accordingly, when the award was framed, the expression "reasonable instructions" was adopted in describing the employees' duty to obey. But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled."

[30] We consider that the same approach would apply to clause 4.1. It is also significant that the clause requires employees to perform the tasks required of them in compliance with "all legal and statutory obligations". It is necessarily implicit in such an obligation that employees must maintain themselves in a position to perform the required duties lawfully.

[31] We have earlier set out the conclusions reached by the Deputy President concerning Mr Goldspring's duties and contractual obligations. In summary:

• he was required to comply with occupational health and safety requirements, policies and procedures established by BHP and to hold and maintain licences as required;[18]

• although he had no written position description, at all relevant times the duties integral to his position required him to operate vehicles and mobile plant and equipment;[19] and

• he was required by his contract of employment to have the ability to operate vehicles or mobile plant or equipment, and was required to hold and continue to hold any licence, permit or qualification required by BHP including under the SOP.[20]

[32] It is clear that Mr Goldspring could reasonably be required to perform these duties under clause 4.1, having regard to the nature of his employment and established usages and common practices. He was also required under the clause to hold a driving licence so that he could perform this work in compliance with his legal obligations under the SOP. Mr Goldspring was not excused from his obligation under clause 4.1 to perform his usual duties simply because, due to his conduct in not paying fines and driving while suspended, his licence was again suspended, since the maintenance of that licence was a necessary incident of the performance of those duties (as well as a term of his contract of employment). To reach a contrary conclusion would be to deprive the contract of employment, and clause 4.1 of the Agreement, of their efficacy, since it would mean that once an employee puts themselves in a position where they are incapable of performing their contractual obligations, they cannot reasonably be required to discharge them. That would lead to the consequence, for example, that an employee with the same duties as Mr Goldspring, if they attended for work in an intoxicated state, would effectively be excused from the contractual obligation to perform those duties because of incapacity. That is obviously not correct because it is a fundamental aspect of the work-wages bargain that the employee is ready and able, as well as willing, to provide the service required by the contract of employment.

[33] In our view, if considered from the perspective of the parties' respective legal rights, the analysis required by the second question posed for determination is relatively straightforward. The contractual position was that, in order to earn wages, Mr Goldspring was required to perform the service he had contracted to perform. As the Deputy President found, Mr Goldspring was, relevantly, required by his contract of employment to have the ability to operate vehicles and mobile plant and equipment, and was required to hold and continue to hold the driving licence required by BHP under the SOP unless an exemption was granted.[21] No such exemption was granted, meaning that Mr Goldspring was unable to perform the "duties ... integral to his role".[22] In short, although he might have been willing to do so, Mr Goldspring was not ready and able to perform the service required by his contract of employment for the period of the suspension of his driver licence, and did not do so. In those circumstances, he had no contractual entitlement to the payment of wages, since actual service is required for wages to be earned.[23] The submission by the CFMMEU that, in complying with BHP's "direction" not to attend for work, Mr Goldspring was providing the required service is not accepted. The factual findings in the Decision make it clear that this "direction" was not one made pursuant to the contract of employment, but in recognition of the fact that Mr Goldspring was not able to provide the required service during the period of licence suspension and therefore had no entitlement to be paid during that period. Nor did this direction need to be one authorised in terms by the contract or the Agreement in circumstances where Mr Goldspring was simply not in a position to discharge his contracted duties.

[34] Because Mr Goldspring's actual entitlement to wages arose under the Agreement (which set the wage rates applicable to his duties), it is necessary to consider whether the Agreement altered the contractual position. It is plain, we consider, that it did not. Because of his failure to maintain his licence over the relevant period, Mr Goldspring put himself in a position where he was unable to perform the tasks that would normally be required of him "while complying with all legal and statutory obligations" under clause 4.1, and likewise was not in a position to "work as directed" in accordance with the first sentence of clause 4.4. The second sentence of clause 4.4 establishes in plain terms that the entitlement to payment only arises in respect of "time worked" unless authorised leave entitlements are accessed. Mr Goldspring did not spend any time performing the duties he would ordinarily have been required to perform over the relevant period, and did no work at all, and thus was not entitled to payment under the Agreement. The Agreement did not, in the applicable circumstances, confer upon him any entitlement to payment beyond that provided by his contract of employment. There might be a question as to whether clause 4.4 would operate to disentitle to the payment of wages an employee who is ready, willing and able to perform work but is wrongfully not allocated any work by BHP, but that is not the situation here. Mr Goldspring was not ready or able to provide the service required by his contract and clause 4.1 of the Agreement because of his failure to continue to hold his driver's licence.

[35] It should be noted that this analysis does not require reference to the line of cases concerning the "no work as directed, no pay" principle. That line of authority, which has its origin in the common law's response to the phenomenon of industrial action in the form of partial work bans, is concerned with the consequence of a refusal by the employee to perform a part of the employee's contracted duties. There was no such refusal on the part of Mr Goldspring in this case. Nor does this analysis depend on any conclusion that BHP had the right, either under clause 3.8 of the Agreement or at common law, to suspend or stand down Mr Goldspring. It did not have that right, but for the reasons explained that does not mean Mr Goldspring had a right to payment.

[36] The second question was approached by the parties as one concerned only with the legal rights of BHP and Mr Goldspring under the contract of employment and the Agreement, and the CFMMEU made only glancing references in its case to considerations of fairness.[24] On the basis of the respective cases advanced by the parties, the Deputy President did not regard either question as being concerned with whether Mr Goldspring was treated fairly or reasonably. In those circumstances, we do not consider it appropriate to resolve the appeal on any different basis or to comment on the industrial fairness or otherwise of BHP's position. The answer to the second question, when approached as one concerned only with whether Mr Goldspring had a legal entitlement to payment, must therefore be "No".

[37] We consider, having regard to our conclusions, that it is appropriate to grant permission to appeal. The appeal will be upheld and the Decision in respect of the answer to the second question will be quashed. In our redetermination of the second question, the answer we give is "No".

[38] We order and determine as follows:

(3) That part of the Decision in which the answer "Yes" is given to the second question is quashed.

(4) The answer to the second question posed for determination by the Commission is "No".

I. Neil SC and J. Alderson of counsel on behalf of BHP Coal Pty Ltd t/a BHP Billiton

C. Massey of counsel on behalf of Construction, Forestry, Maritime, Mining and Energy Union

[1] [2018] FWC 1453

[7] Decision at [112], [115], [127], [130]

[15] Decision at [110], [113], [115], [141], [146]

[17] [1938] HCA 44; (1938) 60 CLR 601

[23] Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 at 449, 452, 461, 463, 476; Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 428; Visscher v Guidice [2009] HCA 34; (2009) 239 CLR 361 at [54]; Coal & Allied Mining Services Pty Ltd v MacPherson [2010] FCAFC 83; (2010) 270 ALR 414 at [66]; see also the discussion in M. Irving, The Contract of Employment at [9.9]-[9.12]. The position will be different however if there is non-performance of the required service due to illness or accidental injury: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 345-6

[24] For example, see paragraph 23 of its written submissions of 9 June 2017.

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