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

In the case of Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd, the parties were the Construction, Forestry, Mining and Energy Union (CFMEU) and Endeavour Coal Pty Ltd (Endeavour). The dispute centred on the industrial rights of Mr Alan McDermott, a member of the CFMEU and an employee of Endeavour. The matter was heard by the Federal Court of Australia. The key legal issues that the court was required to decide were whether the trial judge was correct in concluding that Endeavour had not taken adverse action against Mr McDermott and whether it was open to the trial judge to conclude that Endeavour did not have the necessary subjective intention when Mr McDermott's variable attendance record was constituted by the taking of permissible leave.

The court held that the trial judge's conclusions were incorrect. The court found that the employer's subjective reasons for changing Mr McDermott's shift were related to his variable attendance record, rather than the taking of permissible leave. The court also found that it was open to the trial judge to conclude that the employer did not have the relevant subjective intention when Mr McDermott's variable attendance record was constituted by the taking of permissible leave. Consequently, the appeal was dismissed, and the matter was remitted to the Federal Circuit Court of Australia to determine the appropriate remedies. The Federal Court also made a declaration that Endeavour had contravened section 340(1)(a)(ii) of the Fair Work Act 2009 (Cth) by removing Mr McDermott from the weekend day shift and issuing him a final written warning because or including because he had exercised a workplace right by taking leave to which he was entitled.