Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563

A serious question to be tried arises as to whether the dismissal was for prohibited reasons contrary to ss 340 and 346 of the Fair Work Act, justifying interlocutory reinstatement, especially considering the statutory presumption in favour of the applicant at trial, the balance of convenience, and the preservation of entitlements dependent on employment status; however, reinstatement does not prevent the employer from exercising rights under the employment agreement to direct the applicant not to attend the workplace pending trial.

Jurisdiction
Australia
Judgment Date
25 May 2012
Procedural Posture
Application for Interlocutory Order (industrial Law) / Interlocutory Application for Reinstatement Pending Trial
Outcome
Interlocutory order granted for reinstatement, subject to terms.
Legal Topics
['adverse Action' 'workplace Rights' 'industrial Activity' 'disciplinary Action' 'interlocutory Relief' 'reinstatement' 'protected Industrial Action']
['industrial Law'] ['adverse Action' 'workplace Rights' 'industrial Activity' 'disciplinary Action' 'interlocutory Relief' 'reinstatement' 'protected Industrial Action']

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Procedural Posture

Application for Interlocutory Order (industrial Law) / Interlocutory Application for Reinstatement Pending Trial

Legal Issues

  1. 1 ["Whether the termination of Mr Doevendans's employment contravened sections 340 and 346 of the Fair Work Act 2009 (Cth) by reason of adverse action for prohibited reasons (workplace right, industrial activity, union membership)" 'Whether interlocutory reinstatement pending trial is appropriate, considering the balance of convenience and the statutory presumption under section 361']

Ratio Decidendi

A serious question to be tried arises as to whether the dismissal was for prohibited reasons contrary to ss 340 and 346 of the Fair Work Act, justifying interlocutory reinstatement, especially considering the statutory presumption in favour of the applicant at trial, the balance of convenience, and the preservation of entitlements dependent on employment status; however, reinstatement does not prevent the employer from exercising rights under the employment agreement to direct the applicant not to attend the workplace pending trial.

Court Disposition

Interlocutory order granted for reinstatement, subject to terms.

Orders

  • ["Respondent to reinstate Henk Doevendans to his former employment on terms and conditions prior to 21 May 2012 pending determination of the application, subject to employer's right to direct him not to attend the workplace." 'Liberty to apply on two days notice.' 'Costs reserved.']