Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218

The Court accepted that the decision-makers dismissed Henk Doevendans because he repeatedly held and waved the scabs sign, not because of his union membership, assumed lodge office, or protected industrial action. The s 340 claim failed because he was not rostered to work during the February stoppage and did not participate in the protected industrial action. The s 346(a) membership and officer claims failed because membership or officer status was not a reason for dismissal and, in any event, the Lodge was not an industrial association or branch of the applicant. However, the dismissal contravened s 346(b) because holding and waving the scabs sign was conduct by way of participation in a...

Jurisdiction
Australia
Judgment Date
07 November 2012
Procedural Posture
Fair Work Adverse Action/general Protections Proceeding / Final Judgment on Liability and Reinstatement; Penalties and Remedial or Consequential Orders Left for Further Written Submissions
Outcome
Application upheld in part; dismissal held to contravene s 346(b) of the Fair Work Act 2009 (Cth); reinstatement ordered; further submissions directed on penalties and any remedial or consequential orders.
Legal Topics
['adverse Action' 'general Protections' 'protected Industrial Action' 'industrial Activity' 'industrial Association' 'enterprise Bargaining' 'reinstatement']
['industrial Law' 'employment Law'] ['adverse Action' 'general Protections' 'protected Industrial Action' 'industrial Activity' 'industrial Association' 'enterprise Bargaining' 'reinstatement']

Case Brief

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Procedural Posture

Fair Work Adverse Action/general Protections Proceeding / Final Judgment on Liability and Reinstatement; Penalties and Remedial or Consequential Orders Left for Further Written Submissions

Legal Issues

  1. 1 ['Whether the respondent dismissed Henk Doevendans because he had exercised a workplace right by participating in protected industrial action.' 'Whether the respondent dismissed Henk Doevendans because he was a member or officer of an industrial association.' 'Whether holding and waving the scabs sign was participation in a lawful activity organised or promoted by an industrial association.' 'Whether holding and waving the scabs sign represented or advanced the views, claims or interests of an industrial association.' 'Whether reinstatement should be ordered.']

Ratio Decidendi

The Court accepted that the decision-makers dismissed Henk Doevendans because he repeatedly held and waved the scabs sign, not because of his union membership, assumed lodge office, or protected industrial action. The s 340 claim failed because he was not rostered to work during the February stoppage and did not participate in the protected industrial action. The s 346(a) membership and officer claims failed because membership or officer status was not a reason for dismissal and, in any event, the Lodge was not an industrial association or branch of the applicant. However, the dismissal contravened s 346(b) because holding and waving the scabs sign was conduct by way of participation in a...

Court Disposition

Application upheld in part; dismissal held to contravene s 346(b) of the Fair Work Act 2009 (Cth); reinstatement ordered; further submissions directed on penalties and any remedial or consequential orders.

Orders

  • ['The respondent reinstate Henk Doevendans to the position in which he was employed before the termination of that employment on 21 May 2012.' "The parties have leave to file further written submissions as to penalties, and as to any remedial or consequential orders which ought to be made in the light of the court's...