King & Wood Mallesons

Asia-Pacific 100 position: 2

Provision of accommodation is not 'payment' that may be withheld if protected industrial action is taken

By Lillian Rizio

The High Court of Australia has held that the provision of accommodation to employees does not constitute a ‘payment’ to those employees and should not be withheld in circumstances where section 470(1) of the Fair Work Act 2009(Cth) (FW Act) dictates payments are to be withheld because employees have engaged in industrial action.

The decision makes clear that section 470(1) is designed to prohibit payment of wages to employees during periods of industrial action, rather than provision of other benefits. Accordingly, employers should be wary of seeking to withhold other types of benefits during periods of industrial action, as this might amount to adverse action under the general protection provisions of the FW Act…

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