Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25

Because the primary judge failed to identify or make findings concerning whether the alleged contravening conduct occurred after the Fair Work Act commenced, and because findings of industrial action and of making false or misleading representations were unsupported, the findings of contravention could not stand and the appeal was allowed; orders below were set aside.

Jurisdiction
Australia
Judgment Date
06 March 2015
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal allowed
Legal Topics
['fair Work Act 2009 (cth)' 'enterprise Agreements' 'industrial Action' 'workplace Rights' 'penalty Proceedings']
['industrial Law'] ['fair Work Act 2009 (cth)' 'enterprise Agreements' 'industrial Action' 'workplace Rights' 'penalty Proceedings']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 ['Whether the primary judge erroneously characterised the contraventions as promulgation of the policy rather than the document(s) containing the policy' 'Whether it was necessary for the primary judge to identify the time of contraventions and whether it was so identified' 'Whether a Jones v Dunkel inference could be drawn for failure to call evidence' 'Whether it was proven that the union had organised industrial action' 'Whether BHP had a workplace right under the agreement' 'Whether an employer can have a workplace right under the FW Act' "Whether primary judge erred in finding the reason for union's conduct was BHP's workplace right" 'Whether findings of knowingly or recklessly making false or misleading representations were justified']

Ratio Decidendi

Because the primary judge failed to identify or make findings concerning whether the alleged contravening conduct occurred after the Fair Work Act commenced, and because findings of industrial action and of making false or misleading representations were unsupported, the findings of contravention could not stand and the appeal was allowed; orders below were set aside.

Court Disposition

Appeal allowed

Orders

  • ['The appeal be allowed.' 'The declarations and orders made against the appellant on 2 December 2013 and 11 March 2014 be set aside.']