The power to make workers work

A common complaint of many employers is that one of their workers refuses to do a specific task. “What should I do?” they ask. Their questions are usually directed at the disciplinary process.

Employers forget the immediate tool they have in their arsenal though. What is that tool? Simply to advise the worker: “I am directing you to leave work until such time as you are willing and able to perform all aspects of your work. You will not be paid for this time away from work”.

That should focus the mind!

In the case of Coal & Allied Mining Services v MacPherson [2010] FCAFC 83 (July 12, 2010), Allan MacPherson advised Coal & Allied (CAMS), that he would be leaving work early for personal reasons. He would not disclose the reasons. The mine maintenance manager directed him off-site without pay.

The majority judgment held (quoting Rogers J, Csomore v PSB of NSW) that: “Unless an employer waives the usual requirement of a contract of employment that an employee perform the full range of the work properly assigned to him or unless the award under which the employee works makes a contrary provision, payment of wages is conditional upon performance by the employee of the full range of work assigned or, at least, a readiness and willingness to do so.”

The majority went on to say:

“It cannot be right that an employer should be compelled to pay something for nothing whether he dismisses or retains a worker. In a contract of employment wages and work go together. The employer pays for work and the worker works for his wages. If the employer declines to pay, the worker need not work. If the worker declines to work, the employer need not pay. In an action by a worker to recover his pay he must allege and be ready to prove that he worked or was willing to work.”

The case is good reading for those who enjoy the rational development of commonsense. This is the wash up for businesses.

1. 1. Where a worker refuses to undertake a part of his or her work an employer can direct them to cease work and leave the site until they are ready and willing to perform all work.
   2. During the period the worker has been directed to not work , the employer can lawfully refuse to pay them.
   3. If you permit the worker to continue on different or altered duties, you have to pay the worker his or her full wage.
   4. Discipline is another matter. The personal reasons in CAMS case may have been compelling and urgent,  but McPherson refused to share them. It would be inevitable that McPherson would be subject to a disciplinary process. In a disciplinary process you must:
2. a) Investigate the refusal.
   b) Provide the worker with an opportunity to fully explain why he or she refused.
   c) If the worker is an Award or EA worker or otherwise covered by the Fair Work Act 2009, allow a support person to be present during the interview.
   d) Make sure the punishment fits the crime, taking into consideration past work and personal history.
   e) Keep an open mind!

The CAMS case is a timely case to remind employers that they can control their workplace.

Andrew Douglas is the Managing Director of Douglas LPT, an integrated legal, HR, recruiting and training business. He is the Editor-in-Chief of the loose leaf publication, The OHS Handbook, and writes on workplace law issues such as Industrial Relations, Employment law, OHS, Equal Opportunity, Privacy, Surveillance and Workers Compensation. He is the principal of the legal division of Douglas LPT and appears in courts, tribunals and Commissions throughout Australia.