No obligation to pay employee who lost licence

An employee’s drivers licence was suspended due to unpaid fines and the employer argued that it did not have to accept part-performance or find other duties as he was "ready and willing, but not able, to perform obligations under his contract of employment, as lawfully and reasonably directed".

At first instance Deputy President Ingrid Asbury in March found that the agreement's clause 4.1 required directions to be reasonable and that this trumped BHP Coal's common law right to refuse him alternative or part-duties. BHP Coal appealed the decision. 

The Full Bench of the Fair Work Commission said clause 4.1 widens the scope of employees' duties and has been a common provision since the late 1980s to encourage multi-skilling and multi-tasking. However, while the obligation "is subject to any work requirement being reasonable", the Full Bench said this did not excuse employees "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". 

As the operator's employment contract required him to have the ability and the licences to operate vehicles and equipment, clause 4.1 did not excuse him from these obligations simply because of his conduct in not paying fines and having his licence suspended.

The Full Bench ruled that as the employee was unable to work as directed nor perform his ordinary duties, BHP Coal was not obliged to keep paying or offer alternative duties to the mineworker while his driving licence was suspended.

BHP Coal Pty Ltd t/a BHP Billiton v Construction, Forestry, Maritime, Mining and Energy Union [2018] FWCFB (27 July 2018)

Disclaimer: This summary is not legal advice and for more information on contractual obligations, call NECA Legal (WA) Pty Ltd on (08) 6241 6129 or email necalegal@necawa.asn.au.