Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 971

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 971

There was a serious question to be tried regarding whether the dismissals contravened the Fair Work Act 2009 (Cth) by reason of union membership or industrial activity, and the balance of convenience, having regard to the lack of evidence of ongoing risk, the duration of employment since the original incident, the inability to offer an earlier hearing date, and the psychological impact of idleness, favoured orders for reinstatement pending trial despite employer undertakings.

Jurisdiction
Australia
Judgment Date
09 August 2011
Procedural Posture
Originating Application (interlocutory Injunction) / Application for Interlocutory Injunction Pending Determination of Substantive Application
Outcome
Interlocutory injunction granted; applicants reinstated pending hearing.
Legal Topics
['interlocutory Injunctions' 'unlawful Termination' 'industrial Activity Protection' 'employer Obligations' 'balance of Convenience']
['employment Law' 'industrial Law' 'practice and Procedure'] ['interlocutory Injunctions' 'unlawful Termination' 'industrial Activity Protection' 'employer Obligations' 'balance of Convenience']

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Procedural Posture

Originating Application (interlocutory Injunction) / Application for Interlocutory Injunction Pending Determination of Substantive Application

Legal Issues

  1. 1 ['Whether there was a serious question to be tried regarding the dismissal of union officers under the Fair Work Act 2009 (Cth)' 'Whether the balance of convenience favoured the granting of interim reinstatement injunctions pending trial']

Ratio Decidendi

There was a serious question to be tried regarding whether the dismissals contravened the Fair Work Act 2009 (Cth) by reason of union membership or industrial activity, and the balance of convenience, having regard to the lack of evidence of ongoing risk, the duration of employment since the original incident, the inability to offer an earlier hearing date, and the psychological impact of idleness, favoured orders for reinstatement pending trial despite employer undertakings.

Court Disposition

Interlocutory injunction granted; applicants reinstated pending hearing.

Orders

  • ['Time for service of originating application and affidavits abridged to 9 August 2011.' 'Respondent to reinstate Kevin Adams and Justin Winter to employment on prior terms until hearing or further order.' 'Respondent not to effect termination payments for Adams or Winter arising from terminations of 5 August 2011...