We have now had just over a week to consider the effect of the
Mammoet Case (CFMEU v Mammoet [2013] HCA 36).
In the Mammoet Case, the High Court unanimously allowed an
appeal from a decision of the Federal Court of Australia, which
held that the provision of accommodation to employees during a
period of 'protected industrial action' would have
constituted a 'payment' by their employer that was
prohibited by s 470(1) of the Fair Work Act 2009 (Cth)
(the Act).
Section 470(1) provides that if an employee engages in
'protected industrial action... the employer must not make a
payment to an employee in relation to the total duration of the
industrial action on that day'.
The High Court held that the provision of the accommodation
would not have constituted a 'payment... in relation to the
total duration of the industrial action.' It held that when s
470(1) speaks of 'payment' it means a payment in money and
not simply the transfer of any economic benefit by an
