Federal Court win in adverse action claim
In 2021, Hall Payne Lawyers represented the CFMEU (QLD) in an adverse action claim against BM Alliance Coal Operations Pty Ltd (“BMA”). In January 2023, the Federal Court made an Order in favour of our client.
You can read the Orders for CFMEU v BM Alliance Coal Operations Pty Ltd here.
The case concerned a member of the CFMEU (“the union”) who worked for WorkPac (a labour-hire company) at BM Alliance Coal Operations Pty Ltd’s Daunia mine near Moranbah in Queensland. Specifically, a member of the union had his access to the mine revoked by BMA after raising health and safety concerns. He was given a warning by his employer WorkPac. After an investigation by WorkPac into allegations of misconduct, his employment with WorkPac ultimately came to an end.
In this case, we used a little-known part of s.342 of the Fair Work Act 2009 (Cth) (“the Act”) to allege that BMA took adverse action against WorkPac and/or the member and that the adverse action was unlawful because it was taken because of, or for reasons that included, the fact that the member had exercised a workplace right. The alleged workplace rights related to the making of safety complaints and the reliance by the member upon Standard Operating Procedures “SOP”).
As a preliminary matter, the court accepted that the Standard Operating Procedures upon which the member relied were 'workplaces instruments’ within the meaning of the Act. Further, as another preliminary matter, the court also found that the adverse action alleged by the union did fall within the relevant part of the definition in s.342 of the Act.
When the court came to consider the substance of the claim, that the action of BMA was unlawful because it was taken for a prohibited reason, the court also accepted our arguments.
The court did so because it did not accept the evidence which was brought by BMA to deny that allegation. The court found the evidence of Mr Todd Hennessy, the decision maker from BMA, was “not credible” and “simply implausible”. As such, BMA was unable to discharge its reverse onus. Under the Act, if reverse onus is not discharged, it is assumed that the adverse action was taken for a prohibited reason.
Importance of this decision for labour-hire workers
This decision follows on from a similar decision by the Federal Court in another CFMEU v BMA matter regarding another member of the union, Kim Star. It confirms that labour-hire workers are protected from actions that are taken against them by somebody other than their legal employer, for example, a host employer such as BMA in this case.
Further, the decision is an important one insofar as it confirms that SOPs are of the nature of workplace instruments within the meaning of the Act and are both capable of enforcement and capable of acting to protect workers.
Penalties for BMA and compensation for the worker
The court will hold a further hearing in May 2023 to determine the quantum of penalty to be imposed upon BMA and the amount of compensation to be paid to the member. We are carefully preparing our material ahead of that hearing and will provide a further update once the outcome of that hearing is known.
Get help from an employment lawyer
If you are employed by a labour-hire company, and you have any concerns about your workplace rights and entitlements, you should seek advice and assistance from your union or a lawyer experienced in employment law.
Hall Payne’s award-winning employment law team can assist you with any issues you have related to your employment, including:
- unfair dismissal;
- employment contract negotiation or disputes;
- award rights;
- enterprise agreements;
- general protections;
- disciplinary matters;
- discrimination; and
- workplace injuries.
Contacting Hall Payne Lawyers
You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.
This article relates to Australian law; either at a State or Federal level.
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.
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