SOPs deemed workplace instruments within the meaning of the Fair Work Act

Federal Court of Australia is where Fair Work matters can be heard.

In 2021, Hall Payne Lawyers represented the CFMEU (QLD) in an adverse action claim against BM Alliance Coal Operations Pty Ltd (“BMA”). In January 2023, the Federal Court made an Order in favour of the coal miner worker.

Read Hall Payne full article here.

In this case, Hall Payne argued s.342 of the Fair Work Act 2009 (Cth) (“the Act”) and alleged that BMA took adverse action against WorkPac and/or the member and that the adverse action was unlawful because it was taken because of, or for reasons that included, the fact that the coal mine worker had exercised a workplace right under the Fair Work Act.

The alleged workplace rights related to the making of safety complaints and the reliance by the member upon Standard Operating Procedures (“SOPs”).

As a preliminary matter, the court accepted that the Standard Operating Procedures upon which the coal mine worker relied were 'workplaces instruments’ within the meaning of the Act.

In the Honourable Justice Collier's judgement she made clear:

128    The applicant submitted that the SOPs clearly formed part of the mandated safety and health management system by virtue of s 62(5)(d) of the CMSH Act. However the respondent submitted it did not necessarily follow that every policy, procedure or manual developed by an employer to comply with its obligations under those workplace laws (including the relevant SOPs) constitutes a “workplace instrument” within the meaning of s.12 of the FW Act. In particular, the respondent submitted that the relevant SOPs were not “concerned with the relationships” between employees of BMA and BMA itself. Rather, the object of the SOPs was that of mine safety by the imposition of certain obligations and processes.

129    On a plain reading the CMSH Act and CMSH Regulations expressly require the development of the SOPs. I note in particular that a person failing to meet these requirements, and failing to make available a copy of the safety and health management system, will find themselves subjected to a penalty under the CMSH Act. In addition, I note the detailed consultation process for the creation of SOPs and requisite consultation regarding the safety and health management system.

130    I am satisfied that the relevant SOPs are made under, or recognised by, a “workplace law”. They are objectively “given legal effect or legal life”; Barnett v Territory Insurance Office (2011) 196 FCR 166 at [31]-[32]. I am satisfied that the SOPs meet the first limb of the definition of “workplace instrument”.

131    In relation to the second limb of the definition, the respondent submitted that the SOPs did not “concern” the relationship between an employee and employer, but rather merely regulated mine safety. The respondent relied on the decision of Logan J in ALAEA v Sunstate Airlines (Qld) Pty Ltd (2012) FCR 306 in which his Honour found that the Civil Aviation Regulations 1988 (Cth) were not a “workplace law” because the objective of that regulation was not the relationship between employee and employer. Moreover, Logan J considered that those regulations merely regulated air safety.

132    In addition, relying on ALAEA at [34] the respondent submitted that, because “workplace instrument” is not defined by reference to occupational health and safety matters, the relevant SOPs were not workplace instruments.

133    I am satisfied that the SOPs “concern” the relationship between employers and employees as submitted by the applicant, including by prescribing the way employees perform duties for the employer, and directions the employer may give to the employee regarding the performance of those duties. The legislation and regulations before me differed from those before Logan J. The applicant submits, in my view correctly, that these instruments are made in consultation with employees and employers through an extensive process of which the employee and employer are subsequently bound to follow.

134    I am satisfied that the SOPs are workplace instruments within the meaning in s 12 of the Fair Work Act.

The full court order can be found here.