Fly-in fly-out workers who engage in industrial action, or whose employers take action against them, must be locked out of their accommodation and prevented from using charter flights under the Fair Work Act, according to a recent Federal Magistrates Court decision with serious ramifications for the mining industry.

The Electrical Trades Union has called for the removal of FWA provisions that not merely allow, but require employers to revoke accommodation and charter flights in the event of industrial action by either side, leaving workers without shelter or the means of leaving mining camps.

A decision by the Federal Magistrates Court in October last year in a case brought by the CFMEU found that the company Mammoet was permitted to withdraw accommodation from striking employees because accommodation amounted to remuneration. Indeed, the magistrate, Toni Lucev, found that the company was actually prohibited from providing accommodation by the Fair Work Act, which employer groups claim is too pro-union.

The law firm Mallesons, which acted for the company, discussed the judgment in a recent note for employers.

The decision means that, in disputes where payment of remuneration is prohibited, workers in fly-in fly-out camps will be locked out of their accommodation and prevented from leaving via company charter flight, even if employers have initiated the dispute by locking staff out of a workplace. Critically, even if an employer wishes to allow employees to continue to live in accommodation provide by the employer while a dispute continues, or to fly them out, they are prevented by the Fair Work Act.

The ETU notes in its submission to the government’s Fair Work Act review that “at many mines, and indeed the construction camps that construct those mines, there is no local accommodation or, where there is, the cost of accommodation is extreme. Similarly, many mines are accessible only via charter flight.” However, “during employer industrial action, employers are prohibited from providing Accommodation Rights,” seriously skewing the bargaining process in favour of employers.

The House of Reps committee on regional Australia, chaired by Tony Windsor, is currently conducting an inquiry into fly-in fly-out practices and last week held hearings in central Queensland. Last week, the inquiry heard that demand for labour was so intense that McDonald’s was considering using a fly-in fly-out workforce for an outlet in the town of Moranbah.