BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132

BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132

By majority, the Full Court held that the primary judge erred in concluding that BHP Coal contravened s 346(b). The primary judge had accepted evidence that the decision-maker dismissed Mr Doevendans for reasons including repeated and deliberate holding and waving of the 'scabs' sign, breach of BHP Coal's policy, lack of contrition and conduct antagonistic to the workplace culture being developed, and that his engagement in industrial action or activity did not play any part in the decision-making process. Under Barclay and Bowling, the mere fact that the conduct could be characterised as participation in a lawful activity organised by an industrial association or as advancing an...

Jurisdiction
Australia
Judgment Date
13 December 2013
Procedural Posture
Appeal in the Fair Work Division Concerning Alleged Adverse Action Under the Fair Work Act 2009 (cth) / Appeal From Construction, Forestry, Mining and Energy Union V BHP Coal Pty Ltd (no 3) [2012] FCA 1218
Outcome
Appeal allowed.
Legal Topics
['adverse Action' 'industrial Activity' 'dismissal Following Industrial Action' 'reverse Onus Under S 361 of the Fair Work Act 2009 (cth)' 'multiple Reasons for Action' 'union Activity and Workplace Conduct']
['industrial Law' 'employment Law'] ['adverse Action' 'industrial Activity' 'dismissal Following Industrial Action' 'reverse Onus Under S 361 of the Fair Work Act 2009 (cth)' 'multiple Reasons for Action' 'union Activity and Workplace Conduct']

Case Brief

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Procedural Posture

Appeal in the Fair Work Division Concerning Alleged Adverse Action Under the Fair Work Act 2009 (cth) / Appeal From Construction, Forestry, Mining and Energy Union V BHP Coal Pty Ltd (no 3) [2012] FCA 1218

Legal Issues

  1. 1 ['Whether BHP Coal dismissed Mr Henk Doevendans because he engaged in industrial activity within s 347(b)(iii) or s 347(b)(v) of the Fair Work Act 2009 (Cth).' "Whether the primary judge erred by finding a contravention of s 346(b) after accepting evidence that the employee's engagement in industrial action or activity did not play any part in the decision-maker's decision-making process." 'Whether the reasoning required by Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, 86 ALJR 1044 required the claim under s 346(b) to fail.' 'Whether the employer discharged the onus imposed by s 361 of the Fair Work Act 2009 (Cth).']

Ratio Decidendi

By majority, the Full Court held that the primary judge erred in concluding that BHP Coal contravened s 346(b). The primary judge had accepted evidence that the decision-maker dismissed Mr Doevendans for reasons including repeated and deliberate holding and waving of the 'scabs' sign, breach of BHP Coal's policy, lack of contrition and conduct antagonistic to the workplace culture being developed, and that his engagement in industrial action or activity did not play any part in the decision-making process. Under Barclay and Bowling, the mere fact that the conduct could be characterised as participation in a lawful activity organised by an industrial association or as advancing an...

Court Disposition

Appeal allowed.

Orders

  • ['The appeal is allowed.' 'The order made on 7 November 2012 reinstating Mr Henk Doevendans to the position he occupied prior to the termination of his employment on 21 May 2012 is set aside.' 'The order made on 21 December 2012 that a payment of a pecuniary penalty in the amount of $7,500 in respect to a...