Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd

The Construction, Forestry, Mining and Energy Union (CFMEU) brought an application against BHP Steel (AIS) Pty Ltd, alleging that the respondent refused to employ a union member because of his entitlement to the benefit of an industrial award. The member in question was employed at the respondent's colliery at Douglas Park, near Camden, and after being notified of a possible retrenchment, he applied for a voluntary redundancy exchange position at the respondent’s steelworks at Port Kembla. The retrenchment took effect before a decision was made on his exchange application, and the member was paid the award benefits flowing from his retrenchment. Subsequently, he was offered a position at the steelworks on the condition that he repay the retrenchment benefits. The CFMEU sought orders that the respondent contravened s298K of the Workplace Relations Act 1996 (Cth), and that the Court exercise its discretion to make certain orders.

The court was required to decide whether the respondent's refusal to employ the member on the specified terms constituted a contravention of s298K. The court had to examine the conditions under which the member was offered employment at the steelworks and whether these conditions were imposed due to the member's entitlement to the benefit of the industrial award. The court needed to determine if the demand for the repayment of retrenchment benefits constituted a refusal to employ the member because of his award entitlement. This involved interpreting the language of s298K and considering the specific circumstances of the case.

The court found that the respondent did not contravene s298K. It concluded that the condition attached to the offer of employment at the steelworks was not a refusal to employ the member because of his entitlement to the benefit of the industrial award. The court emphasised that the offer was made subject to the repayment of the retrenchment benefits, which was a standard condition applied to all employees who moved to the steelworks. The court held that the demand for repayment did not constitute a refusal to employ the member on account of his award entitlement. Consequently, the proceeding was dismissed.