BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291

FEDERAL COURT OF AUSTRALIA

BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291 Citation: BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291

Parties: BHP COAL PTY LTD (ACN 010 595 721) v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, TERRY LOW, ROB LAW, KEVIN ADAMS and SCOTT LEGGETT

File number: QUD 103 of 2011

Judge: COLLIER J

Date of judgment: 2 December 2013

Catchwords: INDUSTRIAL LAW – applicant operates mine in central Queensland – second, third, fourth and fifth respondents senior officials of first respondent union – versions of overtime policy of union in service bay crib room and included in information pack to new members – claim by applicant that respondents contravened ss 50, 340, 345, 349 and 417 Fair Work Act 2009 (Cth) – relevance of minor variations in terms of overtime policy – whether respondents displayed or issued overtime policy – whether Lodge on frolic of its own – whether union contravened enterprise agreement – meaning of "contravention" – whether conduct of respondents constituted "industrial action" – hortatory statements in overtime policy – whether individual respondents involved in contravention by union – fifth respondent signed letter accompanying information pack with overtime policy to new members – whether applicant had a workplace right of requiring employees to work unrostered overtime – whether conduct of respondents concerning overtime policy constituted adverse action – evidence of negotiations between applicant and union concerning working of unrostered overtime – whether respondents engaged in false and misleading representations concerning right of the applicant to require employees to work overtime PRACTICE AND PROCEDURE – respondents submitted no case to answer at conclusion of applicant's case – respondents elected to call no evidence in proceedings – relevant principles where respondent makes "no case to answer" submission – application of rule in Jones v Dunkel – standard of proof – principles in Briginshaw v Briginshaw (1938) 60 CLR 336 – s 140 Evidence Act 1995 (Cth) – civil penalty provisions in Fair Work Act 2009 (Cth) – approach of Court to real controversy between the parties