Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697

Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697

The respondent took adverse action against Mr Lamberth by refusing permanent employment, giving a negative performance review, and refusing to accept his nomination to the safety and health committee because he exercised workplace rights and engaged in industrial activity, contrary to ss 340(1)(a)(ii) and 346(b) of...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
29 June 2012
Procedural Posture
Originating Application for Declaratory Relief and Remedial Orders Under the Fair Work Act 2009 (cth) / Final Judgment After Trial
Outcome
Applicants substantially succeeded; declarations made; re-employment ordered; costs of interlocutory application ordered against respondent.
Legal Topics
['adverse Action' 'general Protections' 'prohibited Reasons' 'workplace Rights' 'industrial Activity' 'union Membership' 'discrimination in Employment' 'remedies Under Fair Work Act' 'costs']
['industrial Law' 'employment Law'] ['adverse Action' 'general Protections' 'prohibited Reasons' 'workplace Rights' 'industrial Activity' 'union Membership' 'discrimination in Employment' 'remedies Under Fair Work Act' 'costs']

Source-derived case record

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Procedural Posture

Originating Application for Declaratory Relief and Remedial Orders Under the Fair Work Act 2009 (cth) / Final Judgment After Trial

Legal Issues

  1. 1 ['Did the respondent take adverse action against the applicant(s)?' 'Were workplace rights exercised by the second applicant by making complaints or inquiries relating to employment?' 'Did the second applicant engage in industrial activity?' 'Was the adverse action taken for a prohibited reason, including union membership or exercising workplace rights?' 'Should a re-employment order be made as relief?']

Ratio Decidendi

The respondent took adverse action against Mr Lamberth by refusing permanent employment, giving a negative performance review, and refusing to accept his nomination to the safety and health committee because he exercised workplace rights and engaged in industrial activity, contrary to ss 340(1)(a)(ii) and 346(b) of the Fair Work Act. The respondent failed to rebut the statutory presumption that adverse action was taken for prohibited reasons, and a re-employment order is justified.

Court Disposition

Applicants substantially succeeded; declarations made; re-employment ordered; costs of interlocutory application ordered against respondent.

Orders

  • ['The respondent contravened s 340(1)(a)(ii) of the Fair Work Act 2009 (Cth) in refusing to employ the second applicant after his contract expired because of the exercise of workplace rights.' 'The respondent contravened s 340(1)(a)(ii) by taking adverse action through the performance review for the exercise of...