The Scab Sign Incident

In Brief

On 7 Novem­ber 2012 Jus­tice Jes­sup of the Fed­er­al Court of Aus­tralia gave his judg­ment in Con­struc­tion, Forestry, Min­ing and Ener­gy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218. The case was a claim under the gen­er­al pro­tec­tion pro­vi­sions of the Fair Work Act 2009 (Cth) (the Act) and con­cerned whether a CFMEU mem­ber, Mr Doeven­dans, was dis­missed from his employ­ment because of a pro­hib­it­ed rea­son includ­ing his par­tic­i­pa­tion in indus­tri­al activ­i­ty and because he was a mem­ber or offi­cer of an indus­tri­al association.

Background

Mr Doeven­dans was a long time employ­ee of BHP Coal Pty Ltd on the Sara­ji Mine (Near Moran­bah, Queens­land) owned by the BHP Bil­li­ton Mit­subishi Alliance. Dur­ing a CFMEU pro­tect­ed action, name­ly a protest and stand down, Mr Doeven­dans had held up one of four signs which said:

A com­plaint from a human resources employ­ee of BHP who saw the sign when enter­ing the work­site (i.e. cross­ing the pick­et line) stat­ed she had felt intim­i­dat­ed by the sign. This pre­cip­i­tat­ed an inves­ti­ga­tion, fol­lowed by a warn­ing let­ter, two meet­ings and cul­mi­nat­ing in Mr Doeven­dans’ employ­ment being ter­mi­nat­ed. In form­ing the deci­sion to ter­mi­nate Mr Doeven­dans’ employ­ment, BHP relied on, in its view, Mr Doeven­dans’ fla­grant breach of its Work­place Con­duct Pol­i­cy and BMA Char­ter Val­ues.

The Decision

Jus­tice Jes­sup did not accept CFMEU’s argu­ment that Mr Doeven­dans had been tar­get­ed for dis­missal because of his posi­tion as Vice Pres­i­dent of the Sara­ji Mine CFMEU Lodge, his work in that capac­i­ty and or his alleged exer­cise of work­place rights. He did how­ev­er find for the appli­cant on oth­er grounds.

The Reverse Onus of Proof in Gen­er­al Pro­tec­tions Claims
In an adverse action claim brought under the gen­er­al pro­tec­tions pro­vi­sions of the Act, the employ­er bears the onus of prov­ing they did not take an adverse action against the employ­ee for a pro­hib­it­ed reason. 
Jus­tice Jes­sup reflect­ed on the recent High Court deci­sion in Board of Bendi­go Region­al Insti­tute of Tech­ni­cal and Fur­ther Edu­ca­tion v Bar­clay [2012] HCA 32 and con­sid­ered that in the con­text of this case, s 361 of the Fair Work Act 2009 (Cth);

​“should not be under­stood as cast­ing upon the respon­dent the oblig­a­tion of prov­ing that its rea­sons were com­plete­ly dis­as­so­ci­at­ed from the cir­cum­stance that the dis­missed employ­ee was a mem­ber of an asso­ci­a­tion.” ⁱ

Was Mr Doeven­das ter­mi­nat­ed because he exer­cised a work­place right?
The CFMEU had claimed that Mr Doeven­das had been ter­mi­nat­ed because he had exer­cised a work­place right through his par­tic­i­pa­tion in indus­tri­al activ­i­ty in the form of the protest. Mr Doeven­dans had not been ros­tered on to work the week of the strike or protest. He had not par­tic­i­pat­ed in the indus­tri­al action as he was not strik­ing from work. Accord­ing­ly, Jus­tice Jes­sup did not accept that Mr Doeven­dans had been ter­mi­nat­ed for exer­cis­ing a work­place right.

Was Mr Doeven­dans Ter­mi­nat­ed because he was a Mem­ber or Offi­cer of an Indus­tri­al Association?
His Hon­our con­clud­ed that BHP had not ter­mi­nat­ed Mr Doeven­dans employ­ment due to his being a mem­ber of the CFMEU as it was the actions of Mr Doeven­das and not his role which caused the termination.

His Hon­our held that the Sara­ji Coal Mine Lodge of the CFMEU was not a branch of the CFMEU or an indus­tri­al asso­ci­a­tion in its own right, and Mr Devo­ev­dans was not an offi­cer of the CFMEU despite being an ​“offi­cer” of the Lodge. Mr Doeven­dans was there­fore not dis­missed because he was an offi­cer of an indus­tri­al asso­ci­a­tion (even though the deci­sion mak­er may have assumed he was).

Was Mr Doeven­dans’ action an offence under the Sum­ma­ry Offences Act 2005 (QLD)?
BHP claimed that the hold­ing of the sign was pub­lic nui­sance offence under s 6 of the Sum­ma­ry Offences Act 2005 (QLD) and there­fore the appli­cant was not enti­tled to claim that Mr Doeven­dans had been adverse­ly treat­ed for engag­ing in (law­ful) indus­tri­al activ­i­ty. While Jus­tice Jes­sup accept­ed that the word ​“Scab” was offen­sive he con­sid­ered that the hold­ing of the sign or the sign itself did not inter­fere with the peace­ful pas­sage of the road by a road user. On this basis Mr Doeven­dans’ hold­ing of the sign was not an offence under s 6 of the Sum­ma­ry Offences Act 2005 (QLD) and not unlaw­ful on this basis.

Had Mr Doeven­dans Com­mit­ted an Adverse Action Against Fel­low Employees? 
BHP assert­ed that in dis­play­ing the sign Mr Doeven­dans had con­tra­vened s 346(c) of the Fair Work Act 2009 (Cth) and tak­en an adverse action against employ­ees not tak­ing part in the pro­tect­ed indus­tri­al action. It was claimed Mr Doeven­dans had prej­u­diced the employ­ment of those employ­ees by hold­ing the sign which con­sti­tut­ed an attack on them. Jus­tice Jes­sup con­clud­ed that as there was no effect on the employ­ee’s actu­al employ­ment ( a rela­tion­ship with the employ­ment was not suf­fi­cient) and there­fore this claim could not suc­ceed.

Was Mr Doeven­dans ter­mi­nat­ed because of his indus­tri­al activity?
The protest was organ­ised by the CFMEU. Thus, Mr Doeven­dans hold­ing and wav­ing of the sign was par­tic­i­pa­tion in a law­ful activ­i­ty organ­ised by an indus­tri­al organ­i­sa­tion. Mr Doeven­dans employ­ment was ter­mi­nat­ed because of hold­ing the sign (an indus­tri­al activ­i­ty). As a result, his ter­mi­na­tion was a con­tra­ven­tion of s 346(b) of the Fair Work Act 2009 (Cth).

Jus­tice Jes­sup took evi­dence that the CFMEU used the word scab through­out var­i­ous stick­ers, signs and posters which it then dis­trib­uted to its mem­bers. Fur­ther the word scab was used with­in the CFMEU to describe work­ers who con­tin­ued to work through­out indus­tri­al action. On this basis his Hon­our con­clud­ed that it was the view of the CFMEU that scabs or employ­ees who con­tin­ued to work through­out a strike should be castigated.

Thus, Jus­tice Jes­sup held that in dis­play­ing the sign at the protest, Mr Doeven­dans was advanc­ing the views and inter­ests of an indus­tri­al asso­ci­a­tion, name­ly the CFMEU. This was a fur­ther rea­son why BHP had breached s 346 of the Act in ter­mi­nat­ing Mr Doeven­dans’ employ­ment on account of his hold­ing the sign.

What was BHP Ordered to do? 
Con­sid­er­ing that Mr Doeven­dans had not been ter­mi­nat­ed for any behav­iour in the work­place and had no his­to­ry of prob­lems at work Jus­tice Jes­sup ordered that Mr Doeven­dans be rein­stat­ed to the posi­tion he was employed in pri­or to ter­mi­na­tion. Pend­ing the mak­ing of sub­mis­sions by the par­ties, there may be fur­ther orders made in the pro­ceed­ings as to penalties.

Moral of the Story

Notwith­stand­ing the rever­sal of the Full Fed­er­al Court’s deci­sion in Bar­clay by the High Court, Employ­ers need to con­sid­er very care­ful­ly, employ­ee behav­iour which may well be offen­sive to some, but which at the same time may be under­tak­en as part of law­ful indus­tri­al activ­i­ty. If such offen­sive con­duct occurs as part of law­ful indus­tri­al activ­i­ty it may well be pro­tect­ed and any adverse action tak­en by an employ­er in con­se­quence, sub­ject to sanc­tion from the courts.