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

In this appeal, the Construction, Forestry, Mining and Energy Union (CFMEU) argued that the primary judge had erred in several respects, both in concluding that the CFMEU had contravened the Fair Work Act 2009 (Cth) and in determining the penalty. The case centred on the CFMEU's promulgation of an overtime policy at the Peak Downs mine, which BHP Coal Pty Ltd (BHP) claimed contravened sections 50, 340, 345, 349 and 417 of the FW Act. The primary judge found that the CFMEU had indeed contravened the FW Act by promulgating the policy, organised industrial action in response to the contraventions, and made false or misleading representations.

The central issue before the court was whether the primary judge had correctly identified and characterised the alleged contraventions of the FW Act by the CFMEU. Specifically, the court examined whether the primary judge had properly considered the time of the contraventions, the applicability of the Jones v Dunkel inference, and whether the primary judge had erred in finding that the CFMEU had organised industrial action due to BHP's workplace right under the enterprise agreement. Additionally, the court assessed whether the primary judge had erred in finding that the reason for the CFMEU's industrial action was because of BHP's workplace right and whether the primary judge had correctly determined that the CFMEU had knowingly or recklessly made false or misleading representations.

The court found that the primary judge had indeed erred in several respects. Firstly, the court held that the primary judge had erroneously characterised the manner of the alleged contraventions as the promulgation of the policy rather than the promulgation of the documents containing the policy. Secondly, the court found that the primary judge had not properly identified the time of the contraventions. Thirdly, the court determined that the primary judge had not considered the Jones v Dunkel inference, which could have been drawn from the evidence presented. Moreover, the court found that the primary judge had erred in concluding that the CFMEU had organised industrial action and that the reason for the industrial action was because of BHP's workplace right. Lastly, the court held that the primary judge had erred in finding that the CFMEU had knowingly or recklessly made false or misleading representations.

Consequently, the court allowed the appeal, setting aside the declarations and orders made against the CFMEU on 2 December 2013 and 11 March 2014. The court's decision underscores the importance of accurately characterising the nature of the alleged contraventions, properly identifying the time of the contraventions, and considering the applicability of the Jones v Dunkel inference in cases involving alleged contraventions of the FW Act.