- This decision in CFMEU v BHP is notable for its fairly robust dissent in terms of the artificiality of distinguishing between the act of participating in lawful industrial activities and the method or manner of participation
- From an employer’s perspective, this decision provides some assurance that an employer does not have to entirely disassociate its actions from the employee’s industrial activities in order to discharge the onus under section 361 of the Fair Work Act
- Similarly, an employee engaging in otherwise lawful industrial activity is not totally immune from adverse consequences for any activity associated with that industrial activity
- What this case shows is that the ‘real or operative reason’ for taking adverse action is a question of fact to be determined by the primary judge
The High Court’s recent decision in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd HCA 41 provides helpful guidance on the adverse action provisions contained within the Fair Work Act and whether an employer’s adverse action was taken for a prohibited reason.
Unsurprisingly, as with many workplace relations cases, the events giving rise to the claim in this case were both colourful and contentious. During the course of participating in a lawful industrial protest organised by the CFMEU, an employee of BHP Coal held up and waved a sign, supplied to him by the union, which read, “No principles SCABS No Guts”.
The employee was subsequently dismissed, based on the employer’s contention that the word “scab” was inappropriate, offensive, humiliating, harassing, intimidating, and in breach of BHP Coal’s workplace conduct policy. The CFMEU countered with the claim that in terminating his employment, BHP Coal had taken adverse action against the employee because he had engaged in industrial activity.
Section 346 of Fair Work Act (the Act) prohibits a person from taking adverse action against another person “because” the other person has engaged in industrial activity.