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

The High Court of Australia heard an appeal by the Construction, Forestry, Mining and Energy Union (CFMEU) against BHP Coal Pty Ltd. The dispute concerned allegations that BHP Coal took adverse action against an employee, Mr Doevendans, because he engaged in industrial activity, specifically by participating in protests and displaying a sign critical of BHP Coal and non-union employees during enterprise agreement negotiations.

The central legal issue before the Court was whether BHP Coal's General Manager, Mr Brick, took adverse action against Mr Doevendans for a prohibited reason, within the meaning of section 346(b) of the *Fair Work Act 2009* (Cth). This section prohibits an employer from taking adverse action against an employee because the employee engages in or has engaged in industrial activity, which includes participating in a lawful activity organised or promoted by an industrial association or advancing the views, claims, or interests of an industrial association.

The Court's reasoning focused on the application of sections 346, 347, 360, and 361 of the *Fair Work Act*. Section 360 provides that action is taken for a particular reason if that reason is included among the reasons for the action, and section 361(1) presumes that adverse action was taken for a prohibited reason unless the employer proves otherwise. The Court affirmed that the question of whether adverse action was taken for a prohibited reason is an issue of fact to be determined on the balance of probabilities, considering all established facts and circumstances. Crucially, the Court noted that while direct testimony from a decision-maker, if accepted as reliable, can be capable of discharging the employer's burden of proof, it does not automatically do so. The trier of fact must weigh all the evidence, including the decision-maker's assertions, to be satisfied that the employer has discharged the statutory onus. In this instance, the trial judge had found that Mr Brick dismissed Mr Doevendans for the reasons he gave in evidence, and that these reasons did not include a prohibited reason under the Act.

The High Court dismissed the CFMEU's appeal, upholding the decision of the Full Court of the Federal Court. The Court ordered that the appeal to the High Court be dismissed, setting aside the orders of the Full Court and substituting an order dismissing the appeal to that Court.