Construction, Forestry Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) FCA 1531

Construction, Forestry Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) FCA 1531

The respondent contravened Part XA in three instances because issuing written warnings for serious breaches altered the employees' positions to their prejudice; Messrs Burford, Burke and Bromage were officers of industrial association branches; their relevant absences on 5 December 1997 and 5 May 1998 were for the purpose of carrying out duties as such officers; leave for those absences was unreasonably refused; and the respondent failed to disprove that the disciplinary conduct was for a prohibited reason under s 298V. The allegations concerning Mr Burford on 17 April 1998, Mr King on 27 May 1998 and Mr Beiger on 27 May 1998 were not established.

Jurisdiction
Australia
Judgment Date
05 November 1999
Procedural Posture
Application Under S 298 T of the Workplace Relations Act 1996 (cth) for Orders Imposing Penalties for Alleged Contraventions of Part XA / Reasons for Decision; Court to Hear Counsel as to Appropriate Orders
Outcome
Applicant succeeded in establishing three contraventions of Part XA: written warnings to Mr Burford and Mr Burke for absence on 5 December 1997, and to Mr Bromage for absence on 5 May 1998. Other alleged contraventions were not established. Appropriate orders were reserved for further hearing.
Legal Topics
['part XA of the Workplace Relations Act 1996 (cth)' 'union Delegate Leave' 'prohibited Reasons' 'officer of an Industrial Association' 'alteration of Employee Position to Prejudice' 'unreasonably Refused or Withheld Leave' 'statutory Onus of Proof']
['industrial Law' 'workplace Relations' 'freedom of Association'] ['part XA of the Workplace Relations Act 1996 (cth)' 'union Delegate Leave' 'prohibited Reasons' 'officer of an Industrial Association' 'alteration of Employee Position to Prejudice' 'unreasonably Refused or Withheld Leave' 'statutory Onus of Proof']

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Procedural Posture

Application Under S 298 T of the Workplace Relations Act 1996 (cth) for Orders Imposing Penalties for Alleged Contraventions of Part XA / Reasons for Decision; Court to Hear Counsel as to Appropriate Orders

Legal Issues

  1. 1 ['Whether the relevant employees were officers of an industrial association within s 298L(1)(m) of the Workplace Relations Act 1996 (Cth).' 'Whether issuing written warnings and disciplinary file entries injured employees in employment or altered their positions to their prejudice within s 298K(1).' "Whether the employees' absences without leave were for the purpose of carrying out duties or exercising rights as officers of an industrial association." 'Whether leave was unreasonably refused or withheld for the relevant absences.' "Whether the respondent's conduct was carried out for a prohibited reason or for reasons including a prohibited reason, having regard to s 298V."]

Ratio Decidendi

The respondent contravened Part XA in three instances because issuing written warnings for serious breaches altered the employees' positions to their prejudice; Messrs Burford, Burke and Bromage were officers of industrial association branches; their relevant absences on 5 December 1997 and 5 May 1998 were for the purpose of carrying out duties as such officers; leave for those absences was unreasonably refused; and the respondent failed to disprove that the disciplinary conduct was for a prohibited reason under s 298V. The allegations concerning Mr Burford on 17 April 1998, Mr King on 27 May 1998 and Mr Beiger on 27 May 1998 were not established.

Court Disposition

Applicant succeeded in establishing three contraventions of Part XA: written warnings to Mr Burford and Mr Burke for absence on 5 December 1997, and to Mr Bromage for absence on 5 May 1998. Other alleged contraventions were not established. Appropriate orders were reserved for further hearing.

Orders

  • ['Counsel to be heard as to the appropriate orders to be made in light of the reasons for decision.']