Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 4) [2013] FCA 762

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 4) [2013] FCA 762 Citation: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 4) [2013] FCA 762

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

File number: QUD 204 of 2011

Judge: COLLIER J

Date of judgment: 2 August 2013

Catchwords: INDUSTRIAL LAW – claim of adverse action pursuant to s 346 Fair Work Act 2009 (Cth) – presumption in s 361 Fair Work Act 2009 (Cth) that adverse action taken for prohibited reason unless employer proves otherwise – employees in their capacity as union officials had conversations with a third employee at the mine in relation to his decision to resign from the union – third employee claimed aggressive conduct and intimidation – conduct of employees not unlawful – decision-maker purported to terminate employment of employees based on findings of fact in separate District Court defamation proceedings between relevant mine employees – involvement of respondent in defamation proceedings defending third employee – unexplained harsh treatment three years after relevant conduct of employees – unexplained failure of decision-maker to consider contemporaneous internal investigation where investigators found no substance to complaint concerning dismissed employees – unexplained failure of decision-maker to consider significant number of unsubstantiated complaints made by third employee – dismissed employees credible witnesses – failure to discharge onus of proving that adverse action not taken against employees for a proscribed reason

Legislation: Fair Work Act 2009 (Cth) ss 340, 341(2)(c), 342(1) Item 1(a), 346(a) and (b), 347(b)(ii), (iii) and (v), 360, 361, 362 Workplace Relations Act 1996 (Cth) s 793