Federal Court of Australia
FEDERAL COURT OF AUSTRALIA Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 INDUSTRIAL LAW – Allegation by union that respondent refused to employ its member because of his entitlement to the benefit of an industrial award – Member employed by respondent at its colliery – After notification of possible retrenchment, member applied for voluntary redundancy exchange position at respondent's steelworks – Retrenchment took effect prior to decision on exchange – Member was paid the award benefits flowing from his retrenchment – Member was subsequently offered position at steelworks on condition that he repay the retrenchment benefits – Whether respondent "refused to employ" member – Discretion of Court. Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117 discussed and applied Workplace Relations Act 1996, ss298K, 298L and 298U CONSTRUCTION, FORESTRY, MINING & ENERGY UNION v BHP STEEL (AIS) PTY LTD N133 of 2000 WILCOX J SYDNEY 27 JULY 2000
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N133 of 2000
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Applicant
AND: BHP STEEL (AIS) PTY LTD
Respondent
JUDGE: WILCOX J
DATE OF ORDER: 27 JULY 2000
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The proceeding be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N133 of 2000
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Applicant
AND: BHP STEEL (AIS) PTY LTD
Respondent
JUDGE: WILCOX J
DATE: 27 JULY 2000
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 WILCOX J: A registered employee organisation, Construction, Forestry, Mining and Energy Union ("CFMEU"), has applied to the Court for orders against BHP Steel (AIS) Pty Ltd ("BHP Steel"), in respect of an alleged contravention of s298K(1)(d) of the Workplace Relations Act 1996. CFMEU claims BHP Steel refused to employ one of its members, Christopher Robert Gaskill, because of his entitlement to the benefit of an industrial instrument, The Coal Mining Industry (Production and Engineering) Consolidated Award 1997 ("the coal mining award"). 2 CFMEU seeks orders under s298U of the Act that: (i) BHP Steel engage Mr Gaskill as a graded electrical trades person – base level at the slab maintenance repairs department, BHP Flat Products, Port Kembla; (ii) BHP Steel compensate Mr Gaskill for lost wages and allowances; (iii) A penalty be imposed on BHP Steel and the penalty be paid to CFMEU. 3 There is no dispute about the power of the Court, in a proper case, to make orders of the type sought by CFMEU. But BHP Steel resists the application, contending it did not contravene s298K.
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