In Construction, Forestry, Mining and Energy Union v BHP Cod Pty Ltd (1) ('BHP Cod'), the High Court (by majority) found that the respondent employer ('BHP Coal') did not act unlawfully by dismissing an employee for his conduct during a protest organised by the appellant CFMEU ('Union'). In determining the case, the High Court referred heavily to its decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay ('Barclay'). (2) In Barclay, the Court clarified the principles that Australian courts must apply in relation to claims of prohibited adverse action under the Fair Work Act 2009 (Cth) ('Fair Work Act'). Importantly, the Court emphasised that an employer does not need to show that its reasons for taking action were 'entirely dissociated' from the employee's union position or activity. (3) Rather, the question is whether that was a 'substantial and operative factor (4) in the decision. In other words, an employee who engages in misconduct while coincidentally being engaged in industrial activity is not thereby immune from discipline, which any other employee would face.
In Barclay, the employee, Mr Barclay, sent an email in his capacity as a delegate of the Australian Education Union to union members at the Bendigo Regional Institute of Technical and Further Education (the 'Institute') containing serious allegations of fraud against unnamed individuals in relation to an upcoming audit upon which the Institute's ongoing accreditation and funding depended. The trial judge accepted the evidence of the Institute's CEO, Dr Harvey, who testified that her reasons for taking adverse action did not include the fact that Mr Barclay was a union delegate or had participated in union activity. Rather, he was disciplined for the manner in which he raised the allegations (by way of a broadly distributed email) and his failure to report his concerns to management to enable them to be investigated. (5) The High Court unanimously upheld the approach taken by the trial judge at first instance, after his Honour's decision dismissing Mr Barclay's application was overturned on appeal to the Full Court. (6) By contrast, in BHP Coal, judicial opinion as to the appropriate outcome was split by a majority of three to two. This difference can largely be explained by the fact that in BHP Coal, the alleged misconduct was harder to distinguish from the protected industrial activity in question. The relevant facts are discussed below.
BHP Coal operated a mine in Queensland. The employee in question, Mr Doevendans, had been employed there for some 24 years. He was a longstanding member and officer of the Union. In his role as a union officer he was responsible for overseeing industrial disputes, recruiting new members, meeting with management and investigating complaints about occupational health and safety issues.
During 2011 and 2012, BHP Coal and the Union were negotiating for a new enterprise agreement to apply at the mine. Protected industrial action was taken in support of the union's demands. Relevantly, the Union organised a week-long work stoppage and a protest outside the entrance to the mine site. The protesters carried signs bearing various slogans which they would hold up whenever a car passed along the mine entrance road. One of the signs read, 'No principles SCABS No guts' with the word 'scabs' printed in large and bold red font. Mr Doevendans was alleged to have been holding and waving the 'scabs' sign on numerous occasions.
After an investigation into his conduct, he was given a letter setting out BHP Coal's allegations that his actions breached its workplace policies. Mr Doevendans was also asked to attend a meeting with the general manager of...