Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41

The High Court held that the dismissal of Mr Doevendans was not because he engaged in industrial activity within the meaning of s 347(b)(iii) or (v), but because of conduct contrary to the workplace policy. BHP Coal's decision-maker, Mr Brick, gave reliable evidence of his reasons, which the courts accepted as relating to the content and manner of the protest, not union activity. Therefore, the statutory presumption (s 361) was rebutted, and there was no contravention of s 346(b).

Parties
Appellant: Construction, Forestry, Mining and Energy Union; Respondent: BHP Coal Pty Ltd
Jurisdiction
Australia
Judgment Date
16 October 2014
Procedural Posture
Appeal / High Court of Australia Judgment Following Appeal From Full Court of the Federal Court
Outcome
Appeal dismissed
Legal Topics
Adverse Action, General Protections, Industrial Activity, Dismissal of Employee, Fair Work Act S 346(b), Onus of Proof
Industrial Law Adverse Action General Protections Industrial Activity Dismissal of Employee Fair Work Act S 346(b) Onus of Proof

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Construction, Forestry, Mining and Energy Union

Appellant

BHP Coal Pty Ltd

Respondent

Procedural Posture

Appeal / High Court of Australia Judgment Following Appeal From Full Court of the Federal Court

Legal Issues

  1. 1 Was the termination of Mr Doevendans's employment by BHP Coal Pty Ltd an action taken for a prohibited reason under s 346(b) of the Fair Work Act 2009 (Cth)?
  2. 2 Did BHP Coal discharge its onus to rebut the presumption that adverse action was taken for a prohibited reason as provided by s 361?
  3. 3 Does participation in lawful protest and representation of union views constitute prohibited reasons for adverse action under s 347(b)(iii) & (v)?

Ratio Decidendi

The High Court held that the dismissal of Mr Doevendans was not because he engaged in industrial activity within the meaning of s 347(b)(iii) or (v), but because of conduct contrary to the workplace policy. BHP Coal's decision-maker, Mr Brick, gave reliable evidence of his reasons, which the courts accepted as relating to the content and manner of the protest, not union activity. Therefore, the statutory presumption (s 361) was rebutted, and there was no contravention of s 346(b).

Court Disposition

Appeal dismissed

Orders

  • Appeal to the High Court is dismissed.
  • The orders of the Full Court of the Federal Court were affirmed.