Are you ready (willing and able) for it? When employees are unable to perform their contractual duties

One of the fundamental principles of the employment relationship is the work-wages bargain – an employer pays an employee wages in exchange for work performed. The work-wages bargain assumes that employees are ready, willing and able to perform the work requested of them by the employer. This assumption is challenged when an employee is unable to perform the required work because of some limitation such as the loss (or suspension) of an essential qualification such as a driver’s licence.

The question of the impact of such a limitation was recently explored in the decision of BHP Coal Pty Ltd t/a BHP Billion v Construction, Forestry, Maritime, Mining and Energy Union [2018] FWCFB 4148 where the Full Bench of the Fair Work Commission (FWC) was tasked with considering whether an employee should have been paid wages in circumstances where he could not perform the work required of him as a result of the suspension of his driver’s licence.

The employee was employed at a Queensland mine performing duties that required him to operate vehicles and mobile equipment. Standard operating procedures in place at the mine required all vehicle and mobile equipment operators to hold a current Australian driver’s licence. Any loss of licence was to be immediately reported to the employer.

In August 2016, the employee’s driver’s licence was suspended and he reported the suspension to his employer as required. As a result of the licence suspension, the employer determined that the employee was unable to perform his duties and he was advised that there was no other work for him to perform. The employee was told that he should not return to work until he regained his licence and that he could use his accrued annual leave and/or access unpaid leave for the period of suspension.

The employee did not return to work and was not paid during the period in which his licence was suspended. The employee, through his union the CFMEU, subsequently claimed that he should have been paid during this period and should not have been required to take annual leave or unpaid leave. The matter was referred to the FWC for resolution.

At first instance, Deputy President Asbury held that the employee should have been paid for the period of suspension. Her reasoning turned on a technical argument related to the wording a particular clause in a relevant enterprise agreement.

The employer lodged an appeal to the Full Bench arguing that the Deputy President fell into error in her conclusion that employee should have been paid.

The employer submitted that the issue to be determined was whether the employment contract required the employee to ready and able to drive vehicles and mobile equipment in order to be paid a wage (the work-wages bargain).

The Full Bench upheld the appeal and agreed that the Deputy President had fallen into error.

The Full Bench held that the Deputy President misconstrued and misapplied the clause in the agreement. It considered that this clause (which related to alternative duties) was intended to encourage multiskilling and did not operate to excuse employees from their contractual duties because they are unable to lawfully work because of a loss of licence.

The Full Bench also considered that, contractually, the employee did not have an entitlement to be paid for the period in circumstances where he was not willing or able to perform the required work. The Full Bench held:

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.

Lessons for employers

Employers are sometimes faced with situations where employees are unable to perform their duties because of a temporary loss or suspension of an essential qualification such as a driver’s licence.

Where an employee is not “ready, willing, or able” to work due to the loss of an essential licence or qualification, at common law there is no obligation on employers to provide alternative duties or pay the employee for work not performed.

Of course, a common-sense approach should always be taken and employers should consider whether the loss or suspension of the licence or qualification has an impact on the employee’s ability to perform the inherent requirements of their position or whether the employee can still perform the job adequately in the interim (even if not perfectly).

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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