UGL Rail Services Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Citation: [2024] FCA 860
What happened
Union members employed by UGL Rail on the Cross River Rail project in Brisbane failed to attend work on 30 April and 1 May 2024 because third parties had chained and padlocked all ingress points to the worksite. UGL refused to pay wages for those days. The union then sought arbitration before the Fair Work Commission arguing workers 'attended' and were prevented by physical obstruction. UGL sought interlocutory relief to restrain the arbitration, arguing the dispute involved civil penalty provisions only the courts could determine.
What was decided
The Federal Court granted an interlocutory injunction restraining the union from proceeding with Fair Work Commission arbitration. The Court found a serious question to be tried about whether workers 'attended' for work despite physical obstruction, which determines whether the failure to attend constitutes industrial action under s.19(1)(c). This classification question affects whether s.474-475 prohibitions on wage payment for unprotected industrial action apply, a matter requiring Federal Court determination before arbitration.
What it means for employers
When determining whether to pay wages during work stoppages, employers should carefully document the actual reason workers did not attend. If workers can demonstrate they attempted to attend but were physically prevented by third parties, they may have entitlements to wages even where industrial action is suspected. Disputes about whether workers 'attended' should be clearly documented and may require court determination.
What it means for employees
If prevented from entering a worksite by physical obstruction rather than by employee or union choice, the failure to attend may not constitute unprotected industrial action. Workers should document attempts to attend and the barriers preventing access. Disputes about these facts may require court intervention before arbitration proceedings.
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https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2024/2024fca0860Want more cases like this?
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →