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

FEDERAL COURT OF AUSTRALIA

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

Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and DARYL PETER LAMBERTH v PILBARA IRON COMPANY (SERVICES) PTY LTD

File number: NSD 1928 of 2011

Judge: KATZMANN J

Date of judgment: 29 June 2012

Catchwords: INDUSTRIAL LAW – Adverse action – whether respondent took adverse action against employee – employee was trainee employed on a standard initial fixed term contract – respondent did not offer employment after expiry of fixed term contract – whether employer discriminated between employee and other employees – whether respondent was also a prospective employer – where employer did not accept employee's nomination to be a safety and health committee representative– where employer gave employee a negative performance review – whether poor performance review and refusal to accept nomination altered employee's position to his prejudice INDUSTRIAL LAW –– General protections – prohibited reasons – whether respondent took adverse action for prohibited reason(s) – employee a union member – whether employee engaged in industrial activity – whether employee exercised workplace right by making complaints or inquiries in relation to his employment – whether employee's complaints were "in relation to" his employment – operation of reverse onus in Fair Work Act 2009 (Cth) s 361 – whether alleged adverse action must be particularised in originating application for the s 361 statutory presumption to apply INDUSTRIAL LAW –– Remedy – Fair Work Act 2009 (Cth), s 545 – where employer took adverse action for a prohibited reason – whether a re-employment order requiring the respondent to offer employment an appropriate form of relief COSTS –– Fair Work Act 2009 (Cth), s 570 – where respondent made an unsuccessful interlocutory application to transfer the proceeding to another registry – whether filing the application was an unreasonable act Legislation: Acts Interpretation Act 1901 (Cth) s 15AA Fair Work Act 2009 (Cth) ss 12, 336, 340(1)(a)(ii), 341(1)(c)(ii), 342(1) items 1(c), 1(d) and 2(a), 346(a), 346(b), 347(a), 347(b)(v), 360, 361, 545, 570(1), 570(2)(b) Federal Court of Australia Act 1976 (Cth), s 23