Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 1201

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 1201 Citation: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 1201

Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v BHP COAL PTY LTD

File number: QUD 227 of 2012

Judge: LANDER J

Date of judgment: 2 November 2012

Catchwords: INDUSTRIAL LAW – general protections – adverse action – adverse action alleged to have been taken for proscribed reason within section 346 of Fair Work Act 2009 (Cth) – respondent alleged to have threatened to terminate employment of a member of the applicant because the member had engaged in industrial activity – whether conduct of member engaged in at picket line protest was as alleged – whether, if conduct was as alleged, member had engaged in industrial activity within the meaning of s 347 – whether respondent took adverse action of issuing show cause letter for proscribed reason – whether statutory presumption under s 361 displaced – whether adverse action taken for a proscribed reason that was a substantial and operative reason

Legislation: Conciliation and Arbitration Act 1904 (Cth) Conciliation and Arbitration Act 1904-1976 (Cth) Industrial Arbitration Act 1901 (NSW) Fair Work Act 2009 (Cth) ss 336, 342, 346, 347, 360, 361, 545, 546, 570

Cases cited: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 General Motors-Holden's Pty Ltd v Bowling (1977) 51 ALJR 235 Pearce v W D Peacock & Co Ltd (1917) 23 CLR 199