Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd Summary

[2022] FWC 1353

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Construction, Forestry, Maritime, Mining and Energy Union
v

BHP Coal Pty Ltd

(C2021/4037)

DEPUTY PRESIDENT ASBURY

BRISBANE, 30 MAY 2022

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

This decision concerns an application by the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU/the Applicant) under s.739 of the Fair Work Act 2009 (FW Act) seeking that the Fair Work Commission (the Commission) deal with a dispute under the dispute resolution procedure in the BMA Enterprise Agreement 2018 (the 2018 Agreement). The Respondent is BHP Coal Pty Ltd (Respondent).

The dispute relates to the reasonableness of a disciplinary sanction imposed by the Respondent against Mr Russell Robertson, a member of the Applicant and employee of the Respondent at the Goonyella Riverside Mine.

The agreed question for determination and my answer to that question is as follows:

Question

Was it reasonable, in all of the circumstances, for the Respondent to issue a Level 3 Final Warning to Mr Robertson?
Answer
No.

Reasons for this Decision will issue separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to resolve a dispute under the dispute resolution procedure in the BMA Enterprise Agreement 2018. The dispute involved a disciplinary sanction imposed by BHP Coal Pty Ltd (BHP) on Mr. Russell Robertson, a member of the CFMMEU and an employee of BHP at the Goonyella Riverside Mine. The primary issue before the Commission was whether it was reasonable for BHP to issue a Level 3 Final Warning to Mr. Robertson.

The Commission assessed the reasonableness of the disciplinary sanction within the context of the circumstances surrounding the incident. The determination hinged on whether the sanction was proportionate and justifiable given the nature of Mr. Robertson's actions and the standards expected under the 2018 Agreement. The Commission's decision was based on a comprehensive review of the evidence and arguments presented by both parties, focusing on the proportionality and fairness of the disciplinary action taken by BHP.

The Fair Work Commission concluded that it was not reasonable for BHP to issue a Level 3 Final Warning to Mr. Robertson. The Deputy President, Asbury, provided detailed reasons for this decision, which will be issued separately. The Commission's ruling addressed the specific question of the reasonableness of the sanction and provided a clear outcome based on the evidence and the applicable legal standards.

Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established