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 235Date of hearing: 15-16 May 2012, 1 June 2012 Place: Melbourne (heard in Brisbane) Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 253 Counsel for the Applicant: Mr W Friend SC Solicitor for the Applicant: Hall Payne Lawyers Counsel for the Respondent: Mr R Kenzie QC with Mr C Murdoch Solicitor for the Respondent: Freehills
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 227 of 2012
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Applicant
AND: BHP COAL PTY LTD
Respondent
JUDGE:
LANDER J
DATE OF ORDER:
2 November 2012
WHERE MADE:
MELBOURNE (HEARD IN BRISBANE)
THE COURT ORDERS THAT:
1.The application be dismissed.
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 227 of 2012
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Applicant
AND: BHP COAL PTY LTD
Respondent
JUDGE:
LANDER J
DATE:
2 NOVEMBER 2012
PLACE:
melbourne (heard in BRISBANE)
REASONS FOR JUDGMENT
The Proceeding
This is an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for a declaration that BHP Coal Pty Ltd (BHP Coal) has contravened s 346 of the Fair Work Act 2009 (Cth) (FWA) by threatening to terminate Mr Walter Meacle’s employment because Mr Meacle is and was an officer or member of an industrial association (the…
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Details
- Case
- [2012] FCA 1201
- Decision Date
CaseChat Overview and Summary
The case of CFMEU v BHP Coal Pty Ltd involved a dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and BHP Coal Pty Ltd. The dispute centered on allegations that BHP Coal took adverse action against a union member, Mr. Meacle, for participating in industrial activities. The matter was brought before the Federal Circuit Court of Australia.
The primary legal issues the court had to decide were whether Mr. Meacle had engaged in industrial activity as defined under section 347 of the Fair Work Act 2009, and if so, whether the adverse action taken by BHP Coal, specifically issuing a show cause letter, was for a reason proscribed under section 346 of the same Act. The court also had to consider whether the statutory presumption under section 361 of the Act was displaced and whether the adverse action was taken for a reason that was both substantial and operative.
In reaching its decision, the court examined the evidence presented, including witness statements, the conduct of Mr. Meacle, and the context of the industrial action. The court noted inconsistencies in Mr. Meacle's statements regarding his presence at the protest and his use of the term "scab." However, the court found no evidence linking Mr. Meacle directly to the placement of the signs at the protest. The court also considered the nature of the industrial activity, the protections afforded under the Fair Work Act, and the principles of just culture in workplace discipline.
The court concluded that while Mr. Meacle's conduct was part of broader industrial activity, there was insufficient evidence to establish that the adverse action by BHP Coal was directly related to his participation in that activity. Consequently, the court dismissed the application, finding that the statutory presumption under section 361 was not displaced and that the adverse action was not taken for a proscribed reason.
The court's final orders were that the application be dismissed, as per Rule 39.32 of the Federal Court Rules 2011.
The primary legal issues the court had to decide were whether Mr. Meacle had engaged in industrial activity as defined under section 347 of the Fair Work Act 2009, and if so, whether the adverse action taken by BHP Coal, specifically issuing a show cause letter, was for a reason proscribed under section 346 of the same Act. The court also had to consider whether the statutory presumption under section 361 of the Act was displaced and whether the adverse action was taken for a reason that was both substantial and operative.
In reaching its decision, the court examined the evidence presented, including witness statements, the conduct of Mr. Meacle, and the context of the industrial action. The court noted inconsistencies in Mr. Meacle's statements regarding his presence at the protest and his use of the term "scab." However, the court found no evidence linking Mr. Meacle directly to the placement of the signs at the protest. The court also considered the nature of the industrial activity, the protections afforded under the Fair Work Act, and the principles of just culture in workplace discipline.
The court concluded that while Mr. Meacle's conduct was part of broader industrial activity, there was insufficient evidence to establish that the adverse action by BHP Coal was directly related to his participation in that activity. Consequently, the court dismissed the application, finding that the statutory presumption under section 361 was not displaced and that the adverse action was not taken for a proscribed reason.
The court's final orders were that the application be dismissed, as per Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
After identifying the written documents relied upon for the purposes of the investigation, she addressed additional facts. In that regard, she said in paragraphs 5.6 and 5.7:5.6 Additional Facts5.6.1On 26 March 2012, Mr. Perry met with Mr. Meacle to discuss accusations of breaches of the Workplace Code of Conduct Policy against another employee for a separate matter (Attachment R). During this meeting Mr. Perry told Mr. Meacle that breaches of the BMA Workplace Code of Conduct Policy would not be tolerated.5.6.2Mr. Meacle attended the BHP Billiton Code of Business Conduct training on 7 March 2012, this training was provided by Ms. Prue Mitchell, Advisor Employee Relations.5.7“Scab” Signs5.7.1On 1 April 2012, Ms. Julie Johnston, drove through the protest. On her way through she witnessed a sign leaning on a bollard (water barrier) that stated “Scab Loader” (Attachment B)5.7.2On 3 April 2012, Mr. Bruce Citadella witnessed a scab sign at the picket that stated “Once a scab, always a scab”, he believed that there had been a name on the sign but it was now covered up. (Attachment B)5.7.3On 3 April 2012, Mr. Kevin Barnes witnessed scab signs that had “scab” and “loader” written on it at the entrance of the mine. (Attachment B)5.7.4There is no evidence to suggest that Mr. Meacle placed these signs at the protest. She completed her report with the following findings:6. FINDINGS OF THE INVESTIGATION6.1 Inconsistencies6.1There were a number of inconsistencies in the responses provided by Mr. Meacle:a)At the meeting on 17 April 2012 Mr. Meacle stated that he was not at the protest. However, in his written response provided on 19 April 2012, Mr. Meacle stated that he was at the protest at the time of the incident.b)At the meeting on 17 April 2012, Mr. Crompton stated that he would provide written affidavits to prove that Mr. Meacle was not present at the protest. During this conversation Mr. Crompton asked Ms. Taylor if affidavits could be provided as part of the investigation Ms. Taylor stated that anything that could be useful in the investigation should be provided. Apart from Mr. Meacle’s written statement, nothing further was provided in the 19 April 2012 response.c)At the meeting on 17 April 2012, Mr. Meacle stated that he could not understand why anyone could be offended by his using the word “scab” as it was the term prescribed in the dictionary for those who cross a picket line. However, in Mr. Meacle’s written response provided on 19 April 2012, he stated that he would “never use” the term “scab” or “scab cunt” as he “knows that words like that can upset people”d)Mr. Meacle stated in his written response that meetings are held at approximately 6.15pm, however the meeting on 19 April 2012, is stated by Mr. Meacle to have begun at 6.00pm. The information provided by Verifact in their log states that the meeting began at 6.35pm. Mr. Meacle states in his written response that he saw a vehicle leave the mine site just after 6.30pm – this is the vehicle he alleges that he stated “go home” to.e)Both Mr. Meacle and Mr. Crompton made reference at the meeting on 17 April 2012 that they knew who had made the complaint about Mr. Meacle, even though the name of the complainant had not been provided by the Company.f)In his written response, Mr. Meacle singles out a “white landcruiser ute” as driving out of the mine site, this is believed to be the same model as that driven by Mr. Loader. At no point during the investigation was the name of the complainant provided.6.2The investigator has not come across any inconsistencies in the statements provided by Mr. Trevor Loader.
Evidence
Evidence Before The Court
Mr Meacle’s duties as Shift Delegate are to:(a) provide industrial advice to Union members;(b)represent members who have industrial issues in meetings with BHP Coal Pty Ltd (“BHP”) management; and(c)engage in negotiations with BHP management to resolve industrial issues for members.History and Evidence The CFMEU and BHP Coal have been negotiating a new enterprise agreement in relation to BHP Coal’s employees at the mine for some years. In or about mid 2011, the CFMEU commenced protected industrial action by implementing stoppages of up to seven days. During several of those stoppages, members of the CFMEU conducted protests at the entrance to the mine site by forming a picket line. The protesters situate themselves on both sides of the road leading into the mine and the members of the CFMEU who take part stand behind plastic bollards filled with water, which have been set up by BHP Coal. The CFMEU has a permit from the police, which allows the members to stand within one metre of the road, but usually the protesters stand behind the bollards. Most of the protesters wear red union T-shirts and union caps. The purpose of the protesters is to advance the CFMEU’s claims in relation to the proposed enterprise agreement. The protesters play loud amplified music. Whilst holding placards, the protesters shout and yell at persons who travel in their cars into, or from, the mine. Mr Meacle agreed in his evidence that the purpose of shouting and yelling was to make those in the car hear what they have said. The audience, he said, was in the cars. There is more than one union represented at BMA mines. Those unions that are represented at the mines have joined together in a Single Bargaining Unit (SBU) to represent all of the workers in the various unions. BMA had had reason to write to the SBU, prior to the events with which this proceeding is concerned, relating to the conduct of unionists holding demonstrations near the Norwich Park mine. On 29 July 2011, BMA wrote to the SBU:I refer to the demonstration that occurred at the entrance to the Norwich Park mine on 27 and 28 July 2011.BMA understands that the demonstration commenced after one or all of the Unions (or someone acting on their behalf) applied for permits to hold peaceful demonstrations at two locations at the Norwich Park mine.BMA has been made aware of threatening, intimidating and otherwise inappropriate conduct by the demonstrators. On this basis, the demonstration which your unions organised, managed and co-ordinated was not peaceful.In particular BMA understands that:●employees and contractors were told to ‘go home’, ‘fuck off’, ‘fuck off home’, ‘go home, dogs, and don’t fucking come back!’ as they entered or exited the mine. The words ‘you’re scabs, you’re scabs, you’ve got no morals’ were also yelled at employees and contractors as they entered or exited the mine;●banners with the words ‘No principles Scabs No guts’ were displayed at the entrance to the mine;●signs were placed on the traffic control devices contrary to the approved traffic control plan;●the registration or identification details of contractor vehicles, which entered or exited the site, were recorded and displayed on a chalk board that was mounted on a CFMEU Norwich Park Lodge branded trailer facing the site entrance road;●employees and contractors were video recorded or otherwise filmed as they entered or left the mine site;●at approximately 1am on 28 July 2011, an individual was standing in the middle of the road taking video footage (before he was asked to return behind the barriers by local security); and●loud music was played over loud speakers, which interfered with the safe operation of communications between a traffic controller and personnel involved in road works that occurred at the front entrance to the site.BMA is very concerned about your union’s organisation and involvement in the offending conduct and the effect that the conduct is or may be having on BMA’s employees and contractors. BMA has received complaints from employees and contractors about the threatening and intimidating nature of the conduct at the demonstration.BMA is particularly concerned about your union’s organisation of and involvement in the offending conduct in light of the written assurances you provided on 11 June 2011 – that there would be no interference with contractors and labour hire workers continuing to work during the notified stoppages.BMA’s concerns about the offensive nature of the conduct were raised directly with Brad Crompton, the CFMEU Lodge President – Norwich Park on the afternoon of 27 July 2011. In particular, BMA representatives advised Mr Crompton that the conduct of those participating in the demonstration was contrary to the earlier assurances received about the nature of the demonstration.BMA asked Mr Crompton to remove the signs at the entrance to the mine because they were offensive, inappropriate and intended to prejudice persons exercising their rights. Mr Crompton responded that he would have a meeting of his members and put that to his members. Mr Crompton apparently discussed this with his members and then advised BMA that the signs would not be removed.In light of the information set out above, BMA considers that your unions have (through their officers, delegates, employees and members) been organising and engaging in conduct at the demonstration which has or may have had the effect of (at the very least) intimidating BMA’s employees and contractors or to injure, prejudice or alter their position.
Decision
Reasons for decision
It provides:THE JUST CULTURE DECISION TREEIn order to ensure a consistent and fair approach and to provide a clear consequence for actions the below decision tree will guide in the appropriate discipline level when inappropriate behaviour occurs. However, each situation will be ultimately determined on a case by case basis, taking into account the particular circumstances and severity of each case and the relevant disciplinary procedure.Just Culture Decision Tree FlowchartDefinitions:Slip/Lapse:An unintentional error where a loss of attention causes the incorrect thing to happen or the correct thing to fail to happen.Mistake:An unintentional error where the person did not have the capability to do the correct thing at the time.Cultural Violation: An intentional error by a person because it is perceived by that person that it is the expected action in their work group.Deviant Violation: An intentional error by a person even though they know it is not the approved/tolerated action.The decision tree will assist leaders to make sure that human error is addressed in a clear and consistent manner. The decision tree should only be used for one action at a time. In cases where there are multiple actions that led to the event, each action should be treated separately. There may be an incident where an employee does not follow an isolation procedure, is not wearing the correct PPE and does not follow a broader safe-working procedure/job safety analysis.Each of these acts should be treated separately as each one may have different underlying causes and lead to a different outcome. The decision-maker will then need to exercise judgement to determine an appropriate course of action including mitigating circumstances and previous safety breaches.Where an investigation finds that human error contributed to the incident, the just culture tree shall be applied to decide to ensure the behaviour is corrected; separate from the investigations. Note we are talking about the human error not the consequence e.g. failure to call up versus excavator hitting the dozer.Questions to be asked are:● Was the error intentional or unintentional?○Was a safe operating procedure violated? If yes, were the procedures adequate and available?○Could an equally competent person make the same mistake? If no, were the deficiencies in training, experience or selection?○Is there history of unsafe acts in the individual or group?● For unintentional violations, was the error due to a mistake, slip or lapse and has the individual made similar errors before?● For intentional violations, was the error due to cultural violation (generally not complied with) or was it due to a deviant violation (an individual deliberately chose not to comply with a requirement).Intentional violations are more unacceptable than unintentional violations, with deviant violations being totally unacceptable and not tolerable. Cultural violation are no longer cultural when a line is drawn in the sand and it is clear the behaviour is no longer acceptable.Where an individual makes repeated unintentional mistakes, slips or lapses the behaviour will be deemed unacceptable.
Ratio Decidendi
Legal Principle Established
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