Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 2)

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) filed proceedings against BM Alliance Coal Operations Pty Ltd (BMA) concerning an alleged contravention of Part 3-1 of the Fair Work Act 2009 (Cth). The dispute arose out of the termination of Ms Kim Star's employment by Workpac, a contractor of BMA. Ms Star had been working at BMA's Goonyella Riverside Mine and was dismissed by Workpac on 13 November 2017. The Fair Work Commission found that Ms Star's dismissal was unfair and ordered her reinstatement. Despite this, BMA refused to allow Ms Star to return to work, prompting the CFMMEU to commence proceedings. BMA applied for summary dismissal of the CFMMEU's proceeding, arguing that the CFMMEU's application was statute-barred under section 725 of the Fair Work Act.

The court had to determine whether section 725 of the Fair Work Act was applicable to bar the CFMMEU's proceeding, and if so, whether it should be read as preventing the making of a second application made "by or on behalf of" the dismissed person. The CFMMEU argued that section 725 is confined to the person dismissed and does not extend to applications made on their behalf. The CFMMEU also contended that the legislative intent behind section 725 was to prevent "double dipping" and that it did not extend to proceedings brought by industrial organisations such as the CFMMEU, who bring actions to uphold public standards and vindicate statutory protections. The court considered the language of the statute, legislative intent, and the differing interests of persons who may bring proceedings under the Fair Work Act.

The court found that the CFMMEU's proceeding was not barred by section 725 of the Fair Work Act. The court concluded that section 725 was intended to prevent a dismissed person from bringing a second proceeding for personal vindication, but it did not extend to proceedings brought by industrial organisations such as the CFMMEU. The court found that the CFMMEU was acting in pursuance of its objective to uphold public standards and vindicate statutory protections, which was consistent with the broader legislative intent of the Fair Work Act. Therefore, the court dismissed BMA's amended interlocutory application for summary dismissal.

The court ordered that the amended interlocutory application filed on 4 July 2019 be dismissed and listed the matter for further case management on 4 February 2020. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.