CFMEU left wounded after High Court’s “scab” ruling

It was a win for employers when the High Court recently determined (by a slim margin - in a 3:2 majority) that a union member’s position and activities are not “inextricably entwined with an adverse action”, debunking any theory that such employees are immune from adverse action.

This case (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 (16 October 2014)) involved a mine employee who had been employed for 24 years and waved a sign which read “No principles SCABS No guts" during a lawful protest organised by the CFMEU.

Photography /

Photography /

The evidence of the General Manager of the mine was that the employee was terminated for the following reasons: 

  • the use of the word "scab" on the sign was inappropriate, offensive, humiliating, harassing, intimidating, and violated BHP Coal's workplace conduct policy (FYI this word has a long history in an industrial context, particularly in the mining industry, of showing contempt for those who do not join in industrial action);
  •  the employee was well aware of the policy;
  • the employee demonstrated arrogance when confronted with the objections to his conduct; and
  • the conduct was not only contrary to the policy, but antagonistic to the culture that the General Manager was endeavouring to develop at the mine.

The majority in the case followed the method of analysis of the earlier High Court decision (in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] [2012] HCA 32).  They found that that an inquiry into the mental processes of the decision-maker is necessary in order for the Court to make a finding of fact as to the true reasons of the decision maker in taking the adverse action.

In this case, the majority accepted the General Manager’s evidence and found that:

  • the fact that the employee held and waved the sign while participating in the protest organised by the CFMEU was not an operative part of the General Manager’s reasoning in dismissing the employee;
  • nor was the fact that such signs represented or advanced the views or interests of the CFMEU. 

And for now at least, employers can rest assured that they don't necessarily have to disassociate any adverse action completely from any industrial activity in order to meet the reverse onus of proof in general protections claims.  But as this space. 

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