BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FCA 1495

BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FCA 1495

Leave to appeal from the interlocutory order of reinstatement is granted as arguable grounds exist and practical injustice would flow from refusal, but a stay of the reinstatement pending appeal is refused as Mr Doevendans is entitled to the benefit of the primary judgment and continued absence from the workplace would result in significant non-financial detriment not justified by the circumstances.

Jurisdiction
Australia
Judgment Date
30 November 2012
Procedural Posture
Appeal (leave to Appeal Application) / Application for Leave to Appeal From Interlocutory Judgment; Application for Stay of Reinstatement Order
Outcome
Leave to appeal granted; stay refused
Legal Topics
['leave to Appeal From Interlocutory Orders' 'stay of Reinstatement Orders' 'adverse Action Under Fair Work Act' 'lawfulness of Industrial Activities']
['industrial Law' 'practice and Procedure'] ['leave to Appeal From Interlocutory Orders' 'stay of Reinstatement Orders' 'adverse Action Under Fair Work Act' 'lawfulness of Industrial Activities']

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Procedural Posture

Appeal (leave to Appeal Application) / Application for Leave to Appeal From Interlocutory Judgment; Application for Stay of Reinstatement Order

Legal Issues

  1. 1 ['Whether leave to appeal from an interlocutory order should be granted' 'Whether an interlocutory stay of a reinstatement order should be granted' 'Whether the primary judge erred in findings under sections 346(b) and 347(b) of the Fair Work Act 2009 (Cth)' "Whether displaying a 'scab' sign was unlawful under the Summary Offences Act 2005 (Qld)"]

Ratio Decidendi

Leave to appeal from the interlocutory order of reinstatement is granted as arguable grounds exist and practical injustice would flow from refusal, but a stay of the reinstatement pending appeal is refused as Mr Doevendans is entitled to the benefit of the primary judgment and continued absence from the workplace would result in significant non-financial detriment not justified by the circumstances.

Court Disposition

Leave to appeal granted; stay refused

Orders

  • ['The appellant is granted leave to appeal on the grounds set out in its amended draft notice of appeal.' "The application for stay of the Court's decision of 7 November 2012 is dismissed." 'Costs be reserved.']