181:
299:'Both the activity and the manner in which Mr Doevendans took part in it were lawful. So long as the protest was conducted lawfully, it was not to the point to ask (as Mr Brick did) whether what was said or done in the protest would offend others or, in particular, would offend some employees. And when Mr Brick concluded that Mr Doevendans should be dismissed because he had deliberately and repeatedly protested in an offensive manner, Mr Brick acted for a prohibited reason. He dismissed Mr Doevendans because he had participated in a lawful activity organised by the CFMEU'
42:
349:, a major Australian law firm for employers; said of the decision that 'One clear result is that conduct of an employee-unionist that can be characterised as the representation or advancing of views or interests of a union is not absolutely protected. (If it) is inimical to values that an employer requires of its employees, then an employer may well be able to take disciplinary action'.
357:'The word 'scab' is of common and historical use in Australian industrial disputes - it's not a personal insult but a reflection of collective values. ... We maintain our belief (Doevendans) was targeted for sacking not because he was holding a sign but because he was a union delegate ... (BHP had used the) excuse of a code of conduct to put a worker out of a job.'
272:'In a case where the totality of the operative and immediate reasons for one person having taken adverse action against another person are proved, the question presented by s 346(b) is whether any one or more of those reasons answers the description of the other person having engaged in any one or more of the industrial activities listed in s 347(a) or (b)'
309:
judge had found Mr Brick to be a reliable witness, and that Mr
Doevendans had not been dismissed 'for reasons other than those given by (Mr Brick)'. Nevertheless, the primary judge did not state or imply that he had accepted Mr Brick's assertion that Doevendans' engagement in industrial activity played no part in his decision-making process.
202:
view, the use of the word 'scab' was 'unacceptable in the workplace'. Use of the word scab was contrary to BHP's workplace conduct policy; which required courtesy and respect to other employees. Mr Brick regarded the conduct as arrogant and 'antagonistic to the culture (he) was endeavoring to develop at the mine'.
312:
Her honour found that the circumstances and conduct for which
Doevendans was dismissed, was inconsistent with, and rendered unreliable by, Mr Brick's assertion that Doevendans' engagement with industrial action had nothing to do with the decision. Crennan found that on the material before the trial,
201:
The general manager of the mine, Mr Geoff Brick decided that
Doevendans should be dismissed. He took this action because during protests that the CFMEU held in association with a seven-day work stoppage, Doevendans had several times held up a sign reading 'No principles SCABS No guts'. In Mr Brick's
276:
Gageler found that the totality of the reasons for BHP having taken adverse action were 'proved by the evidence of Mr Brick about his own process of reasoning'. It had been proven at trial that the waiving of signs and participation in protest, were not operative reasons. Therefore, he affirmed the
259:
While there existed a 'connection' between the decision to terminate and
Doevendans' holding up of the sign, in the words of the court: 'That connection may necessitate some consideration as to the true motivations of Mr Brick, but it cannot itself provide the reason why Mr Brick took the action he
308:
Crennan briefly surveyed prior authorities dealing with legislative predecessors to ss346 and 361 of the act. Her Honour found that there was authority for the protective provisions requiring an inquiry that 'asked more than why a decision-maker acted as he or she did'. She found that the primary
255:
French & Kiefel made their decision in reliance on findings made by the trial judge. Jessup J had found that Mr Brick's reason for making a decision to terminate, didn't include Mr
Doevendans' participation in industrial activity, or him having represented the views of the CFMEU. Jessup J had
211:
dismissal is a form of 'adverse action'. Section 346 of the act prohibits persons taking adverse action against another person because that person has engaged in 'industrial activity' within the meaning of s347. The CFMEU sued under the Act, asserting that BHP Coal had acted in breach.
294:
He wrote that 'Mr
Doevendans' use of the word (scab) ... cannot be divorced from the circumstances in which it was used.' Mr Brick's reasons for dismissing Doevendans 'hinged around the language in which Mr Doevendans chose to express that latter form of protest'. Hayne went on to
324:
Additionally, in regards to the sign
Crennan J found that while 'the scabs sign used "conspicuously offensive language", the only qualification of the protection given by s347(b)(iii) is that the activity ... be lawful - there is no additional qualification that it be anodyne'.
313:
Jessup J was entitled to reject BHP's 'contention that holding and waving the scabs sign as part of lawful industrial activities protected under s 347(b)(iii) and (v) could be abstracted from the Act's protection; because the sign was offensive, albeit lawful'.
344:
industry journal as standing for the proposition that; 'If the behaviour of an employee-unionist offends or is against the company's values then the employer may take disciplinary action – even if the behaviour is representative of a union'.
372:
352:
Andrew
Vickers, General Secretary of the CFMEU's Mining and Energy division at the time said the decision was a 'blow to workers' rights, freedom of expression and participation in lawful industrial activity'. He was quoted at the time as
316:
Therefore, the primary judge was 'entitled to conclude that Mr Brick terminated
Doevendans' employment for the reasons given, and that those reasons supported Doevendans' inferential case against BHP'. Crennan asserted that the case
290:
Hayne J found for the CFMEU, on the ground that no distinction could be drawn between the activity of protest and the manner in which the employee protested; and so therefore
Doevendans had been dismissed for a prohibited reason.
180:
804:
678:
Note: The cases Crennan referred to were: - Pearce v W D Peacock & Co Ltd (1917) 23 CLR 199; HCA 28 - General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235; 12 ALR 60 - Barclay (2012) 248 CLR 500 at 521
158:
779:
392:
321:'doesn't hinder the drawing of available inferences which may controvert an honest decision-maker's assertion that ... (adverse action was not taken for a prohibited reason)'.
131:
The trial judge was entitled to find on the material before him, that adverse action had been taken against Doevendans for his participation in a protected industrial activity
337:
is the latest High Court case to deal with adverse action in the context of protected industrial activities. It is an important case for Australian unions and employers.
168:
The case centered on BHP's decision to terminate the employment of an employee, who in the course of a lawful protest had held up a sign reading 'No principles
829:
805:"CFMEU v BHP Coal - High Court upholds employer's right to terminate employee for breaching its code of conduct - Employment and HR - Australia"
861:
231:
dissenting. They concluded that BHP had not dismissed Doevendans because he had engaged in industrial activity as defined in the act.
125:
No distinction can be drawn between the activity of protest and the lawful, albeit offensive manner in which the employee protested
420:
194:
In May 2012 the respondent BHP Coal dismissed one of its employees, Mr Henk Doevendans. Mr Doevendands had been employed at the
115:
It had been proven at trial that the waiving of signs and participation in protest were not operative reasons for the dismissal
780:"Employees engaged in lawful industrial activity aren't immune from adverse action, says High Court - Knowledge - Clayton Utz"
469:
393:"Employees engaged in lawful industrial activity aren't immune from adverse action, says High Court - Knowledge - Clayton Utz"
109:
The true motivations of Mr Brick in sacking Doevendans were not for reason of his participation in protected activities
219:
held that BHP had dismissed Doevendans in breach of the act. BHP Coal then appealed to the Full Federal Court, where
153:'s section 346 protections against adverse action for participation in industrial activities. It was decided by the
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Full Federal Court's finding that Doevendans' dismissal was not in contravention of s346(b).
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https://cdn.hcourt.gov.au/assets/publications/judgment-summaries/2014/hca-41-2014-10-16.pdf
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41:
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450:"Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd | Opinions on High"
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169:
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157:. It was an appeal brought by an Australian labour union (then the CFMEU, now the
373:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay
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228:
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made an explicit finding that Brick was not motivated by those considerations.
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did. That enquiry was concluded by his Honour's earlier findings'.
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The High Court narrowly decided the appeal in favour of BHP.
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His honour formulated the core issue the case as being:
421:"Courts divided over "scabs" with "no guts" dismissal"
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85:
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48:
34:
830:"High Court backs sacking of BHP worker - 9News"
234:The CFMEU then sought review in the High Court.
198:for 24 years, and was a member of the CFMEU.
89:French CJ, Hayne, Crennan, Kiefel, Gageler JJ
8:
40:
31:
27:Judgement of the High Court of Australia
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7:
443:
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415:
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448:Clark, Martin (16 October 2014).
340:The case has been described by a
227:upheld the appeal by majority;
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862:High Court of Australia cases
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319:Board of Bendigo v Barclay
161:) against a subsidiary of
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39:
762:CFMEU v BHP Coal Pty Ltd
744:CFMEU v BHP Coal Pty Ltd
726:CFMEU v BHP Coal Pty Ltd
708:CFMEU v BHP Coal Pty Ltd
690:CFMEU v BHP Coal Pty Ltd
662:CFMEU v BHP Coal Pty Ltd
644:CFMEU v BHP Coal Pty Ltd
626:CFMEU v BHP Coal Pty Ltd
608:CFMEU v BHP Coal Pty Ltd
590:CFMEU v BHP Coal Pty Ltd
572:CFMEU v BHP Coal Pty Ltd
554:CFMEU v BHP Coal Pty Ltd
536:CFMEU v BHP Coal Pty Ltd
518:CFMEU v BHP Coal Pty Ltd
500:CFMEU v BHP Coal Pty Ltd
482:CFMEU v BHP Coal Pty Ltd
251:French CJ & Kiefel J
165:named BHP Coal Pty Ltd.
142:CFMEU v BHP Coal Pty Ltd
112:French CJ & Kiefel J
35:CFMEU v BHP Coal Pty Ltd
18:CFMEU v BHP Coal Pty Ltd
767:[2014] HCA 41
749:[2014] HCA 41
731:[2014] HCA 41
713:[2014] HCA 41
695:[2014] HCA 41
667:[2014] HCA 41
649:[2014] HCA 41
631:[2014] HCA 41
613:[2014] HCA 41
595:[2014] HCA 41
577:[2014] HCA 41
559:[2014] HCA 41
541:[2014] HCA 41
523:[2014] HCA 41
505:[2014] HCA 41
487:[2014] HCA 41
155:High Court of Australia
53:High Court of Australia
359:
301:
274:
191:
368:Australian labour law
355:
297:
270:
183:
147:Australian labour law
71:[2014] HCA 41
525: at para 29 - 30
489: at para 24 - 25
784:www.claytonutz.com
507: at para 3 - 4
397:www.claytonutz.com
192:
836:. 16 October 2014
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102:Appeal dismissed
16:(Redirected from
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196:Saraji coal mine
81:Court membership
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838:. Retrieved
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333:As of 2020,
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329:Significance
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149:case on the
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347:Clayton Utz
76:253 CLR 243
74:88 ALJR 980
62:16 Oct 2014
840:25 October
814:25 October
789:25 October
455:25 October
430:24 October
402:24 October
379:References
205:Under the
172:No guts'.
121:dissenting
304:Crennan J
264:Gageler J
238:Judgement
221:Dowsett J
215:At trial
134:Crennan J
118:Gageler J
67:Citations
856:Category
362:See also
246:Majority
217:Jessup J
105:majority
353:saying:
286:Hayne J
281:Dissent
229:Kenny J
225:Flick J
128:Hayne J
59:Decided
295:write:
159:CFMMEU
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185:CSIRO
176:Facts
170:SCABS
100:(3:2)
49:Court
842:2020
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432:2020
404:2020
223:and
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20:)
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