THE Federal Court of Australia has ruled that the CFMEU’s mining and energy division took adverse action against BHP Coal by enforcing an overtime policy at its Peak Downs mine in Central Queensland that contravened the provisions of the site’s enterprise agreement.

The case constitutes a rare occasion where an employer has successfully taken on a trade union for adverse action.

According to the case summary, the CFMEU distributed a ‘membership pack’ to new employees that contained the union’s own overtime policy stipulating that 7-day roster employees could only work one overtime shift in their 16-day cycle, while 5-day roster employees were capped to 56-hour weeks.

The policy was also posted to a union notice board in the mine’s crib room with the stated aim to ‘get more new employees a job’, and at least one version warned of minor penalties for union members who breached its conditions.

BHP Coal instigated the legal action because the enterprise agreement that had covered the mine since 2007 clearly provided under clause 19.3 that employees could be required by the employer to work reasonable overtime.

The company argued that the CFMEU and four of its Peak Downs officials had taken adverse action against the company, engaged in industrial action contrary to the s417 of the Fair Work Act, and breached the site’s enterprise agreement.

The CFMEU did not call any evidence of its own and elected to run a ‘no case to answer’ submission.

Federal Court Justice Collier ruled in favour of BHP Coal and found the CFMEU and one of the four officials had breached various industrial laws. There was insufficient evidence to prosecute the other three officials.

In her ruling Collier J found that:

• The CFMEU, with the permission or knowledge of the other respondents (its Peak Downs officials), did display the policy in the crib room and/or issue the policy to new employees;
• This was conduct contrary to clause 19.3 of the 2007 Agreement and in breach of section 50 of the Fair Work Act;
• The CFMEU did apply a ban or limit on its members working additional unrostered overtime as may be required by the applicant pursuant to clause 19.3 of the 2007 Agreement;
• This was in breach of section 417 of the Fair Work Act;
• BHP Coal did have a workplace right pursuant to the 2007 agreement to require employees to work unrostered overtime;
• Because of this fact, the union had taken adverse action against the applicant within the meaning of section 342 of the Fair Work Act; and
• The union did engage in false and misleading representations concerning the right of the employer to require overtime.

“The effect of the (CFMEU’s) policy is to plainly limit employees working unrostered overtime, even if that overtime were reasonable and required to meet operational requirements,” Justice Collier said in her ruling.

“(This conduct did) deprive the applicant (BHP Coal) of its entitlement to have employees work unrostered overtime unless the overtime was worked in circumstances contemplated by the overtime policy.”

This case represents a rare win where an employer has elected to prosecute a union for adverse action. It also affirms the workplace rights of employers to enforce policies as agreed under the relevant enterprise agreement, regardless of it conflicting with a unions other policies or standards.

The full judgement can be read here.

For more information on this case or how it may be relevant to your organisation, please contact AREEA’s director of legal services Amanda Mansini via [email protected]