Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2010] FCA 590

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2010] FCA 590

The meeting of 30 October 2009 was an investigatory meeting held to obtain Mr Lohmann's response to inconsistencies between his account and the crash investigator's findings, not a meeting at which counselling, a warning or discipline was administered under clause 44.3. Clause 44.3 therefore did not prescribe or limit attendance at the meeting, and the union's asserted workplace right concerning exclusion of human resources staff did not arise. In any event, Mr Rae's statements did not amount to a threat to dismiss, injure or alter Mr Lohmann's employment position to his prejudice, but were encouragement to provide information relevant to the investigation.

Jurisdiction
Australia
Judgment Date
11 June 2010
Procedural Posture
Industrial Law Application Seeking Declarations and Penalties for Alleged Contravention of S 340 of the Fair Work Act 2009 (cth) / Final Judgment
Outcome
Application dismissed.
Legal Topics
['adverse Action' 'workplace Rights' 'workplace Agreement Interpretation' 'disciplinary Procedure' 'investigation Meeting']
['industrial Law' 'employment Law'] ['adverse Action' 'workplace Rights' 'workplace Agreement Interpretation' 'disciplinary Procedure' 'investigation Meeting']

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Procedural Posture

Industrial Law Application Seeking Declarations and Penalties for Alleged Contravention of S 340 of the Fair Work Act 2009 (cth) / Final Judgment

Legal Issues

  1. 1 ['Whether the meeting on 30 October 2009 was held in accordance with clause 44.3 of the BHP Coal Pty Ltd Workplace Agreement 2007.' 'Whether clause 44.3 prescribed or limited the persons entitled to attend the meeting, including whether human resources staff were excluded.' 'Whether any entitlement concerning attendance at the meeting was a workplace right of Mr Lohmann.' 'Whether statements made by Mr Rae at the meeting constituted adverse action within the meaning of s 340 and s 342 of the Fair Work Act 2009 (Cth).']

Ratio Decidendi

The meeting of 30 October 2009 was an investigatory meeting held to obtain Mr Lohmann's response to inconsistencies between his account and the crash investigator's findings, not a meeting at which counselling, a warning or discipline was administered under clause 44.3. Clause 44.3 therefore did not prescribe or limit attendance at the meeting, and the union's asserted workplace right concerning exclusion of human resources staff did not arise. In any event, Mr Rae's statements did not amount to a threat to dismiss, injure or alter Mr Lohmann's employment position to his prejudice, but were encouragement to provide information relevant to the investigation.

Court Disposition

Application dismissed.

Orders

  • ['The application be dismissed.']