Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 4) [2012] FCA 1454

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 4) [2012] FCA 1454

The Court ordered that Mr Doevendans' service be treated as unbroken because that order was sought under s 545(1) of the Fair Work Act 2009 (Cth) and was not opposed. However, Mr Doevendans stopped being a worker at the Saraji mine when dismissed on 21 May 2012 within s 96(b) of the Coal Mining Safety and Health Act 1999 (Qld), because the provision requires carrying out work at the mine and not merely the continuation of employment. The requested declaration and alternative order concerning his site safety and health representative position were therefore refused. A penalty of $7,500 was appropriate for the respondent's contravention of s 346 of the Fair Work Act 2009 (Cth), having...

Jurisdiction
Australia
Judgment Date
21 December 2012
Procedural Posture
Industrial Law Proceeding Concerning Contravention of S 346 of the Fair Work Act 2009 (cth) / Application for Consequential or Ancillary Orders and Pecuniary Penalty After Reasons Delivered on 7 November 2012
Outcome
Application allowed in part; continuity of service and pecuniary penalty orders made, but relief concerning the site safety and health representative position refused.
Legal Topics
['adverse Action' 'civil Remedy Provision' 'pecuniary Penalty' 'reinstatement and Continuity of Service' 'site Safety and Health Representative']
['industrial Law' 'workplace Relations' 'coal Mine Safety and Health'] ['adverse Action' 'civil Remedy Provision' 'pecuniary Penalty' 'reinstatement and Continuity of Service' 'site Safety and Health Representative']

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Procedural Posture

Industrial Law Proceeding Concerning Contravention of S 346 of the Fair Work Act 2009 (cth) / Application for Consequential or Ancillary Orders and Pecuniary Penalty After Reasons Delivered on 7 November 2012

Legal Issues

  1. 1 ["Whether Mr Doevendans' service with the respondent should be treated as unbroken for all purposes." "Whether the termination of Mr Doevendans' employment on 21 May 2012 had the effect of terminating his position as a site safety and health representative under the Coal Mining Safety and Health Act 1999 (Qld)." "Whether an alternative order should be made treating the termination as of no effect for the purpose of Mr Doevendans' position as site safety and health representative." "Whether a pecuniary penalty should be imposed for the respondent's contravention of s 346 of the Fair Work Act 2009 (Cth), and if so in what amount and to whom it should be paid."]

Ratio Decidendi

The Court ordered that Mr Doevendans' service be treated as unbroken because that order was sought under s 545(1) of the Fair Work Act 2009 (Cth) and was not opposed. However, Mr Doevendans stopped being a worker at the Saraji mine when dismissed on 21 May 2012 within s 96(b) of the Coal Mining Safety and Health Act 1999 (Qld), because the provision requires carrying out work at the mine and not merely the continuation of employment. The requested declaration and alternative order concerning his site safety and health representative position were therefore refused. A penalty of $7,500 was appropriate for the respondent's contravention of s 346 of the Fair Work Act 2009 (Cth), having...

Court Disposition

Application allowed in part; continuity of service and pecuniary penalty orders made, but relief concerning the site safety and health representative position refused.

Orders

  • ["Further to Order 1 made on 7 November 2012, the respondent treat Henk Doevendans' service as unbroken for all purposes." 'The respondent pay a pecuniary penalty in the amount of $7,500 in respect of its contravention of s 346 of the Fair Work Act 2009 (Cth) identified in the reasons of the court published in this...