FEDERAL COURT OF AUSTRALIA BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FCA 1495 Citation: BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FCA 1495 Appeal from: Application for amending notice of appeal: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 Parties: BHP COAL PTY LTD v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION File number: QUD 637 of 2012 Judge: LOGAN J Date of judgment: 30 November 2012 Catchwords: INDUSTRIAL LAW – decision by primary judge interlocutory in nature – penalties and other related orders yet to be heard – reinstatement ordered by primary judge – interlocutory application to stay reinstatement– considerations relevant to whether to grant such a stay –interlocutory stay refused PRACTICE AND PROCEDURE – appeals – leave to appeal from interlocutory judgment – discretion to grant leave – whether decision attended by sufficient doubt to warrant its consideration by appellate court – Court informed by Niemann v Electronic Industries Ltd [1978] VR 431 and Décor Corporation Proprietary Limited v Dart Industries Inc (1991) 33 FCR 397 – grant of leave to appeal Legislation: Fair Work Act 2009 (Cth) Summary Offences Act 2005 (Qld) Cases cited: Australian Building & Construction Commissioner v Abbott (No 4) [2011] FCA 950 cited Australian Postal Corporation v Stephens (No 2) (2011) 207 IR 454 considered Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044 considered Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 1201 considered Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 cited Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 followed Niemann v Electronic Industries Limited [1978] VR 431 followed Quincolli Pty Ltd v Fair Work Ombudsman [2012] FCA 373 cited Date of hearing: 30 November 2012 Place: Brisbane (via video link to Canberra) Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Appellant: Mr I Neil SC Solicitor for the Appellant: Ashurst Australia Counsel for the Respondent: Ms C Howell Solicitor for the Respondent: Hall Payne Lawyers IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY FAIR WORK DIVISION QUD 637 of 2012 ON APPEAL FROM a single judge of the federal court of australia BETWEEN: BHP COAL PTY LTD Appellant AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Respondent JUDGE: LOGAN J DATE OF ORDER: 30 NOVEMBER 2012 WHERE MADE: BRISBANE (VIA VIDEO LINK TO CANBERRA) THE COURT ORDERS THAT: 1. The appellant is granted to leave to appeal on the grounds set out in its amended draft notice of appeal. 2. The application for stay of the Court's decision of 7 November 2012 is dismissed. 3. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY FAIR WORK DIVISION QUD 637 of 2012 ON APPEAL FROM a single judge of the federal court of australia BETWEEN: BHP COAL PTY LTD Appellant AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Respondent JUDGE: LOGAN J DATE: 30 NOVEMBER 2012 PLACE: BRISBANE (VIA VIDEO LINK TO CANBERRA) REASONS FOR JUDGMENT 1 On 7 November 2012, for reasons which his Honour then published (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218) Jessup J ordered that the respondent, BHP Coal Pty Ltd (BHP), reinstate Henk Doevendans (Mr Doevedans), to the position in which he was employed before the termination of that employment on 21 May 2012. His Honour also gave directions in respect of the provision of submissions as to penalties and other orders. 2 Those orders were a sequel to an application made by the Construction, Forestry, Mining and Energy Union (CFMEU) in which the union sought the imposition of penalties and ancillary relief in respect of alleged adverse action contrary to the Fair Work Act 2009 (Cth). The order requiring reinstatement was one of the ancillary orders in prospect at the time when the proceeding was instituted. 3 The parties are agreed that the reinstatement order is to be characterised as interlocutory rather than final for the purposes of determining whether or not an appeal as a right lies against that order or rather whether it is one in respect of which leave to appeal is required. Even though the practical effect of that order has about it a quality of finality, I am satisfied that the parties are not mistaken as to the characterising of the order. 4 That, in turn, has meant that BHP, which wishes to challenge that reinstatement order, has at this juncture to seek a grant of leave to appeal. Associated with the application for a grant of leave to appeal is an application for an order that the Court's order of 7 November 2012 be stayed until the determination of any appeal instituted as a consequence of a grant of leave or further earlier order. 5 The effect of the reinstatement order made on 7 November 2012 was to constitute a further order for the purposes of paragraph 1 of an interlocutory order made by Greenwood J on 25 May 2012. That order provided, subject to paragraph 2 of that order that, until the hearing and determination of the civil penalty application, BHP reinstate Mr Doevendans to his former employment with it on the terms that applied prior to 21 May 2012. Paragraph 2 of that order provided that that reinstatement affected a reinstatement of all incidents of the employment agreement, including any entitlement subsisting in the employer to direct Mr Doevendans not to attend the workplace from time to time at all pending the determination of the proceeding. 6 The consequence of that proviso to the interlocutory order for reinstatement has been that Mr Doevendans has been directed not to attend at the workplace since May this year, but with the benefit of full pay. A consequence of a grant of leave to appeal, having regard, to the ordinary practice and procedure of the Court in relation to when appeals would be heard, is that an appeal against the reinstatement order of 7 November 2012 would not be heard in the ordinary course until the appeal sittings in May next year. It is, of course, speculative as to when thereafter any such appeal might be determined. At the very least, the consequence of the stay relief sought by BHP would be that Mr Doevendans would have been away from his employment for some 12 months by the time when the appeal came to be heard and perhaps longer before it came to be determined. 7 In relation to the question of whether or not leave to appeal should be granted the principles in that regard have been regarded in this Court as those set out, by reference to Niemann v Electronic Industries Limited [1978] VR 431, in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In short, the relevant considerations are whether in all the circumstances the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong. 8 One basis upon which leave to appeal is opposed by the union flows from its interlocutory character and observations made by Rares J in Australian Postal Corporation v Stephens (No 2) (2011) 207 IR 454 (Australian Postal Corporation v Stephens (No 2)), which were followed by Jagot J in Quincolli Proprietary Limited v Fair Work Ombudsman [2012] FCA 373. In Australian Postal Corporation v Stephens (No 2) at [16] his Honour stated: In all of the circumstances I am not satisfied that substantial injustice would result from the refusal of grant of leave. Indeed, I consider that the balance of the justice of the case lies heavily in favour of refusing leave to appeal. Interlocutory appeals of this nature should be discouraged where there can be expeditious and prompt determination of penalty at a short hearing so that this Court will be able to appreciate, on the appeal, the whole of the factual circumstances, and all of the findings made by the trial judge both on the merits and on penalty. This is preferable to a bifurcated, trilogy of proceedings, which would result were leave granted. In these circumstances, I am of opinion that I should order that the application for leave to appeal be dismissed. 9 That is not, with respect, in my opinion an appropriate basis upon which to refuse a grant of leave in the present case. As I have already observed the reinstatement order had about it a practical finality even though, in strict point of law, because it did not finally dispose of the whole of the proceedings it is to be characterised as interlocutory. 10 The order took effect according to its terms on the day on which it was made. The employer therefore was faced with the dilemma of obeying an order according to its terms which it regarded as having been made for reasons which were attended with error or seeking to at some later stage when the proceedings were finally determined to challenge the orders finally made on a basis which included a challenge to the reinstatement order. The difficulty about that industrially for the employer would have been that, in the meantime, Mr Doevendans would have had to have been reinstated, lest BHP be in jeopardy of a finding of contempt of court. It is submitted, on behalf of the union, that another way in which that dilemma could have been addressed, apart from seeking leave to appeal and an associated stay, is to seek, from the primary judge, an order postponing the operation of the reinstatement order. It was, though, noteworthy that it was no part of that submission that the union would have consented to any such order, had it been sought. 11 Industrially, BHP, in my opinion, given its disposition to challenge the order, had little choice other than to adopt the course which it adopted. That there is an order having a practical final effect distinguishes this case from those cases where there has been nothing more than a finding of contravention, with assessment of penalty to follow. Even in those situations, it is not, in my experience, invariably the case that a challenge to a contravention finding is postponed until penalty assessment. The CFMEU itself has adopted such a course in a challenge to decision of Gilmour J, in Australian Building & Construction Commissioner v Abbott (No 4) [2011] FCA 950, an appeal heard, but not as yet determined. 12 The nature of the order, the subject of challenge, also distinguishes the present from that class of case where the Court discourages appeals from interlocutory judgments on mere matters of practice and procedure, lest those with a long pocket and a litigious disposition oppress those not so blessed. 13 The grounds upon which it is sought to challenge the judgment of the primary judge are set out in proposed amended notice of appeal. I shall annexe the terms of the proposed grounds of appeal to these reasons for judgment, if only because their prolixity would add unnecessarily to the length of the judgment itself. What can be said, though, of the proposed grounds of appeal is that they are, in my opinion, arguable. That is not, of course, to make any pronouncement upon what may prove to be their final merit. Nonetheless, BHP does have, in my opinion, an arguable case to challenge the judgment below. 14 It is a moot point as to whether or not, in the circumstances of this case, the employer did indeed, having regard to the recent judgment of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044 (Barclay's case), discharge the onus of proof that fell upon it in relation to the reason for the adverse action; namely, the termination of Mr Doevendans' employment. The relevant decision-maker, Mr Brick, gave evidence in this case. He was not regarded as a witness unworthy of credit. There is a question to be determined on appeal as to whether, having regard to his evidence, and Barclay's case, that evidence should have been regarded as exculpatory rather than incriminatory. There are further issues which BHP seeks to agitate, by reference to whether or not the conduct concerned, the holding up of a sign with the word "scab" on it, was or was not, quite apart from the Fair Work Act, lawful conduct, having regard to the terms of the Summary Offences Act 2005 (Qld). Yet, further, BHP seeks to argue, by reference to a judgment delivered earlier this month by Lander J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 1201, that, adopting the approach of his Honour in that case, there ought to have been a finding of an absence of any adverse action for a reason flowing from any industrial activity. 15 To put matters in this succinct way is not to delve at length into grounds more elaborately stated. Nonetheless, it is enough to indicate the nature, broadly, of the challenge made. 16 That the case is one which is arguable is one factor to take into account in terms of whether or not to grant leave. Another is whether practical injustice would flow. In my opinion, a practical injustice would flow in this instance, having regard to a pause which is likely to occur between the interlocutory judgment and the final judgment. The time for challenge industrially was now, rather than later. 17 That the case is one which is arguable, and such as to warrant a grant of leave, is one factor which would tell in favour of a stay of the reinstatement order. There are, though, other factors to be weighed in the balance, and they are very telling indeed in that regard, in my opinion. Prima facie, Mr Doevendans is entitled to the fruits of the judgment secured against BHP by his union. BHP, for its part, would see continued, pending the hearing and determination of the appeal, arrangements which have hitherto been in place, such as would see an absence of financial detriment to Mr Doevendans until that determination occurred. That, though, is not the only detriment which a worker would suffer in the event of being kept away from the workplace, at least for a year. 18 Also to be taken into account is the conduct itself which gave rise to these proceedings. Doubtless, that conduct seemed serious enough to BHP at the time. For all that, though, this does not appear to me to be a case where one might reasonably apprehend that the return of Mr Doevendans to the workplace would be in the nature of the injection of a bacillus. There has doubtless been something of a scarifying effect already flowing from his absence from the workplace and the attending of a termination consequence to the conduct in which he admittedly engaged. He has been, on the evidence, a worker of 24 years standing, without any particular blemish, other than that which gave rise to the present proceedings. 19 He has also held, upon the vote of his fellow workers, a workplace health and safety position, under Queensland legislation, in the workplace. He wishes to continue to hold such a position. The position in question is one which would come for re-election after December of this year. Whilst BHP is willing to allow him to return so as to campaign for that position, that seems a rather poor substitute to me for his being physically present, in accordance with the judgment of the primary judge, in the workplace. 20 That apart, there are very real considerations, all too often underplayed in a society where money has an overweening attraction, about a worker's presence in a workplace, and the dignity and satisfaction that brings to a worker. These would be lost to Mr Doevendans, not for six months, but for 12 months at the least if this part of BHP's application succeeded. 21 Weighing these considerations in balance, as one must, the case is one, in my opinion, for a grant of leave, but not for any interlocutory stay. There will be orders accordingly. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 21 December 2012 ANNEXURE Grounds of appeal 1. The primary judge erroneously held that the appellant had contravened sections 346(b) and 347(b)(iii) of the Fair Work Act 2009 (Cth). Particulars In holding in paragraph [114] of the reasons for the primary judgment that the appellant had contravened sections 346(b) and 347(b)(iii), the primary judge made the following orders: (a) Having correctly held in paragraphs [28] to [31] and [36] that the reasons occasion for the appellant's dismissal of Mr Doevendans were related only to was the fact, nature and quality of his conduct in holding up a 'scab sign' and waving it at passing motorists, the primary judge (i) should have held that Mr Doevendans had not been dismissed because he had engaged in industrial activity within the meaning of section 347(b)(iii); and (ii) then erroneously held in paragraph [84] that the relevant activity for the purposes of section 347(b)(iii) was the protest in which Mr Doevendans was participating, rather than his display and use of the scab sign; (a1) The primary judge erroneously held in paragraph [90] that section 347(b)(iii) should be construed so as to require only that the relevant activity be lawful, and not that the conduct constituting participation in that activity be lawful; (a2) The primary judge erroneously failed to find that unlawful conduct either (i) could not constitute participation in a lawful activity, or (ii) in the alternative to (i), has the effect of making the activity in question unlawful. (b) The primary judge erroneously held in paragraph [106] that displaying the scab sign to members of the public driving past on a public road (including, as the primary judge correctly held in paragraph [94], with the intention that it be read and understood by workers who were not participating in industrial action) was not behaviour that interfered with, or was likely to interfere with, their peaceful enjoyment of the public road within the meaning of section 6(2)(b) of the Summary Offences Act 2005 (Qld); (c) In so holding, the primary judge in paragraph [106] adopted and applied the test of whether the behaviour in question interfered with, or was likely to interfere with, beneficial use of the public road, which is not the test required by section 6(2)(b) of the Summary Offences Act; (d) The primary judge having correctly held in paragraph [45] that the words contained on the scab sign were conspicuously offensive, and that the point of calling someone a scab was to offend and to belittle them, erroneously held that the behaviour of Mr Doevendans in displaying the scab sign was not unlawful under section 6 of the Summary Offences Act. (e) The primary judge erroneously held in paragraph [109] that the effect on employees to whom the scab sign was displayed was not an effect in their employment, within the meaning of section 342(1) of the Fair Work Act. (f) The primary judge erroneously held in paragraph [109] that the employees to whom the scab sign was directed were not, directly or indirectly, prejudiced in their employment, within the meaning of section 342(1) of the Fair Work Act. (g) The primary judge, having correctly found in paragraph [111] that the protest had been organised and promoted by the committee of the Saraji Mine Lodge, and in paragraph [75] that the Lodge was not itself in industrial association, then erroneously held in paragraph [113] that the protest was organized and promoted by the respondent within the meaning of section 347(b)(iii) of the Fair Work Act. 2. The primary judge erroneously held that the applicant had contravened sections 346(b) and 347(b)(v) of the Fair Work Act. Particulars In holding in paragraph [123] that the appellant had contravened sections 346(b) and 347(b)(v) of the Fair Work Act, the primary judge made the following errors: (a) The primary judge erroneously held in paragraph [123] that Mr Doevendans was dismissed for his conduct in representing and advancing views and interests of the respondent, or its Queensland District Branch, when the only reason for Mr Doevendans' dismissal, as the primary judge had correctly found in paragraphs [28] to [31] and [36], was the fact, nature and quality of Mr Doevendans' conduct in holding up a scab sign and waving it at passing motorists. (a1) Having correctly held in paragraphs [28] to [31] and [36] that the reasons for the appellant's dismissal of Mr Doevendans were related only to the fact, nature and quality of his conduct in holding a 'scab sign' and waving it at passing motorists, the primary judge should have held that Mr Doevendans had not been dismissed because he had engaged in industrial activity within the meaning of section 347(b)(v). (b) In paragraph [121] the primary judge erroneously held that the respondent had proved that its view, or the view of its Queensland District Branch, that workers who continue to work during an endorsed strike should be castigated as scabs. (c) In doing so: (i) In paragraph [119] the primary judge wrongly admitted evidence of Andrew Vickers, having erroneously held that it was probative of the views of the respondent within the meaning of section 347(b)(v). (ii) In paragraph [121] the primary judge erroneously held that, in referring to the "views" of an industrial association, section 346 was not "confined to opinions formally adopted, either by way of rules or formal resolutions", but also included views "arrived at ad hoc for the purposes of a particular claim or dispute", and views inferred "from the facts of the case, without any express statement in terms" and "from the way the association has conducted itself over many years", including conduct that the industrial association encourages or in which it is complicit. (iii) The primary judge wrongly ignored evidence of the email correspondence from Judy Gray, National Legal Officer of the respondent's Mining and Energy Division, which established that the contents of the scab sign did not represent the views of the respondent for the purposes of section 347(b)(v) of the Fair Work Act. (d) In paragraph [122] the primary judge erroneously held that Mr Doevendans' conduct in holding up a scab sign and waving it at passing motorists with the intention of offending and belittling workers were not participating in industrial action represented or advanced the interest of the Queensland District Branch in its industrial negotiations with the appellant. (e) Further, or in the alternative, the primary judge erroneously held in paragraph [123] that Mr Doevendans was representing and advancing views and interests of the respondent, or its Queensland District Branch, merely because his conduct was consonant or consistent with such views or interests. (e1) In the alternative to Particulars (a) to (e) above, and further to Particulars (b) to (f) to Ground 1, the primary judge should have held that unlawful conduct in representing or advancing the views or interests of an industrial association does not fall within section 347(b)(v) on its proper construction.