Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 1201

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 1201

BHP Coal proved on the balance of probabilities, primarily through the evidence of its decision-maker and investigator, that the reason for taking the adverse action (issuing a show cause letter) to Mr Meacle was due to his offensive conduct directed towards another employee and not for any proscribed reason relating to his union membership, office, or engagement in industrial activity. As such, the statutory presumption in s 361 of the Fair Work Act 2009 (Cth) was displaced and there was no contravention of s 346(b).

Jurisdiction
Australia
Judgment Date
02 November 2012
Procedural Posture
Application for Declaration and Consequential Orders Under the Fair Work Act 2009 (cth) / Final Judgment at First Instance
Outcome
Application dismissed
Legal Topics
['general Protections' 'adverse Action' 'industrial Activity' 'employment Termination' 'union Activity' 'harassment in Workplace']
['industrial Law' 'employment Law'] ['general Protections' 'adverse Action' 'industrial Activity' 'employment Termination' 'union Activity' 'harassment in Workplace']

Case Brief

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Procedural Posture

Application for Declaration and Consequential Orders Under the Fair Work Act 2009 (cth) / Final Judgment at First Instance

Legal Issues

  1. 1 ['Whether BHP Coal Pty Ltd took adverse action under s 346 of the Fair Work Act 2009 (Cth) against Mr Meacle because of his industrial activity as defined by s 347;' 'Whether the statutory presumption in s 361 of the Fair Work Act 2009 (Cth) was displaced;' 'Whether the applicant can demonstrate that adverse action was taken for a proscribed reason under s 346(b) of the Fair Work Act 2009 (Cth).']

Ratio Decidendi

BHP Coal proved on the balance of probabilities, primarily through the evidence of its decision-maker and investigator, that the reason for taking the adverse action (issuing a show cause letter) to Mr Meacle was due to his offensive conduct directed towards another employee and not for any proscribed reason relating to his union membership, office, or engagement in industrial activity. As such, the statutory presumption in s 361 of the Fair Work Act 2009 (Cth) was displaced and there was no contravention of s 346(b).

Court Disposition

Application dismissed

Orders

  • ['The application be dismissed.']