Construction Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2023] FCA 30

Construction Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2023] FCA 30

The relevant SOPs were workplace instruments because they were required by and given legal effect under the Coal Mining Safety and Health Act 1999 (Qld) and Coal Mining Safety and Health Regulations 2017 (Qld), and they concerned the employer-employee relationship by prescribing how employees performed duties and how directions could be given. Mr Meikle exercised workplace rights by raising the overtaking safety concern and by refusing to remove the out of service tag except as authorised under the Isolation and Tagging SOP. BMA took adverse action against him within s 342 Item 3 by excluding him from the Mine and thereby refusing to make use of services offered by WorkPac. The Court did...

Jurisdiction
Australia
Judgment Date
30 January 2023
Procedural Posture
Industrial Law Application Alleging Contravention of S 340 of the Fair Work Act 2009 (cth) / Judgment After Hearing; Proceedings Against Work Pac Pty Ltd Discontinued by Consent
Outcome
Application granted; declaratory relief ordered, with further relief to be addressed by case management orders.
Legal Topics
['adverse Action' 'workplace Rights' 'workplace Instruments' 'independent Contractor Labour Hire Arrangements' 'coal Mine Safety Procedures' 'fair Work Act 2009 (cth) S 340']
['industrial Law' 'employment and Industrial Relations' 'work Health and Safety'] ['adverse Action' 'workplace Rights' 'workplace Instruments' 'independent Contractor Labour Hire Arrangements' 'coal Mine Safety Procedures' 'fair Work Act 2009 (cth) S 340']

Case Brief

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Procedural Posture

Industrial Law Application Alleging Contravention of S 340 of the Fair Work Act 2009 (cth) / Judgment After Hearing; Proceedings Against Work Pac Pty Ltd Discontinued by Consent

Legal Issues

  1. 1 ['Whether the respondent took adverse action within the meaning of s 342 Item 3 of the Fair Work Act 2009 (Cth) by excluding Mr Daryl Meikle from the Daunia Mine.' 'Whether the Traffic Management Plan and Traffic Rules, Isolation and Tagging SOP, and Workplace Inspections SOP were workplace instruments within s 12 of the Fair Work Act 2009 (Cth).' 'Whether Mr Meikle exercised workplace rights by complaining about the overtaking manoeuvre and adherence to the Traffic Rules SOP.' 'Whether Mr Meikle exercised a workplace right by refusing to remove an out of service tag when he said he was not authorised to do so under the Isolation and Tagging SOP.' 'Whether the respondent discharged the onus of proving that the adverse action was not taken for a prohibited reason.']

Ratio Decidendi

The relevant SOPs were workplace instruments because they were required by and given legal effect under the Coal Mining Safety and Health Act 1999 (Qld) and Coal Mining Safety and Health Regulations 2017 (Qld), and they concerned the employer-employee relationship by prescribing how employees performed duties and how directions could be given. Mr Meikle exercised workplace rights by raising the overtaking safety concern and by refusing to remove the out of service tag except as authorised under the Isolation and Tagging SOP. BMA took adverse action against him within s 342 Item 3 by excluding him from the Mine and thereby refusing to make use of services offered by WorkPac. The Court did...

Court Disposition

Application granted; declaratory relief ordered, with further relief to be addressed by case management orders.

Orders

  • ['The Court declares that BM Alliance Coal Operations Pty Ltd contravened s. 340 of the Fair Work Act 2009 (Cth) by taking adverse action within the meaning of Item 3(d) in the table in s. 342 of the FW Act against Mr Daryl Meikle, an employee of WorkPac Pty Ltd, by refusing to make use of services offered by...