High Court Upholds “Scab” Sign Termination: CFMEU v BHP Coal [2014] HCA 41
Thursday 16 October 2014 @ 12.41 p.m. | Industrial Law
In a 3:2 decision, the High Court rejected an appeal by the Construction, Forestry, Mining and Energy Union (the CFMEU) from the Full Federal Court. French CJ, Kiefel J and Gageler J held that the dismissal by BHP Coal of CFMEU member, Mr Doevendans, was not an action taken for a reason prohibited by the Fair Work Act 2009 (Cth) (the FW Act). Hayne J and Crennan J dissented.
Facts
Mr Doevandans was participating in a lawful protest organised by the CFMEU outside the Saraji mine, at which he was employed. In the course of this protest, he waved a sign provided by the CFMEU which said “No principles Scabs No guts”. Some employees complained to management about the signs. The General Manager found that Mr Doevandans’ conduct in waving the sign was “inconsistent with applicable workplace conduct policy” and “unacceptable in the workplace”, and constituted “harassment and/or intimidation” of non-union employees and employees who attended the workplace [at 34]. Mr Doevandans’ employment was terminated as a result.
The CFMEU brought proceedings in the Federal Court of Australia, claiming that BHP Coal had breached s 346(b) of the FW Act, which prohibits an employer from taking adverse action against a person because they engaged in industrial activity.
At first instance, Jessup J of the Federal Court found for the CFMEU. That decision was overturned in the Full Court of the Federal Court by a 2:1 majority. The CFMEU then appealed to the High Court.
Decision
French CJ and Kiefel J, in a joint opinion, found that s 346:
“does not direct a court to enquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action.” [at 19, emphasis added].”
They also cautioned against treating the onus on an employer differently if the adverse action was taken while an employee was engaged in industrial activity, saying this would “destroy the balance between employers and employees” [at 20].
In his dissenting opinion, Hayne J argued that the use of the offensive term “scab” “cannot be divorced from the circumstances in which it was used” [at 42]. He also stressed that the protest was lawful, and did not take place on the mine property, and said that where:
“the activity is a protest, no further distinction can be made between those protests which are courteous or polite and those which (lawfully) give offence. [at 46]”
Crennan J agreed with his reasoning in a separate judgment.
Gageler J agreed with French CJ and Kiefel J in a separate judgment, saying that the Full Federal Court was correct to conclude:
“the totality of the operative and immediate reasons for BHP Coal having taken adverse action against Mr Doevendans were proved by the evidence of Mr Brick about his own process of reasoning. The fact that Mr Doevendans held and waved the signs while participating in the protest organised by the CFMEU was not an operative part of Mr Brick's reasoning. [at 90]”
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Sources:
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 (16 October 2014) & judgment summary
