Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 3) [2022] FCA 1345 File number(s): QUD 731 of 2018
Judgment of: COLLIER J
Date of judgment: 11 November 2022
Catchwords: INDUSTRIAL LAW – s 340 Fair Work Act 2009 (Cth) – whether adverse action taken against employee for exercising a workplace right – whether employee exercised workplace right or participated in a process or proceeding under a workplace law or workplace instrument – s 341 Fair Work Act - "workplace instrument" - s 12 Fair Work Act – whether Safe Loading Standard Operating Procedure and Fitness for Work Policy a "workplace instrument" - whether s 274 of the Coal Mine Safety and Health Act 1999 (Qld) requires objective basis for belief of immediate danger - whether respondent refused services of independent contractor pursuant to labour hire agreement - whether the respondent took adverse action by refusing to make use of services of independent contractor - whether refusal to make use of services of independent contractor amounted to advising, inciting or encouraging exclusion of employee by independent contractor – s 362 Fair Work Act – whether adverse action taken for a prohibited reason - s 361 Fair Work Act– application granted
Legislation: Coal Mining Safety and Health Act 1999 (Qld) Coal Mining Safety and Health Regulations 2017 (Qld) Fair Work Act 2009 (Cth)
Cases cited: Australian Licenced Aircraft Association v Sunstate Airlines (Qld) Pty Ltd [2012] FCA 1222; 208 FCR 386 Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd [2012] FCA 1222 Australian Licensed Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 Barnett v Territory Insurance Office [2011] FCA 968 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] [2012] HCA 32 Construction Forestry Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76 Newton v Australian Postal Corporation (No 2) [2019] FCA 2192; (2019) 292 IR 396 Thiess v Collector of Customs (2014) 306 ALR 594 Wong v National Australia Bank Limited [2022] FCAFC 155
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