Case Update: Mining & Energy Division of the CFMEU

On 20 May 2014 Hall Payne Lawyers obtained an interlocutory order from the Federal Court which reinstated a member of the Mining & Energy Division of the CFMEU, the President of the Moura Lodge of the Union, to his former employment with Anglo Coal at the Dawson Mine.

The member suffers from serious asthma. On 21 April 2014 the member was feeling unwell and didn’t believe that he would be fit to perform the night shift that he was rostered for on 23 and 24 April 2014. In an attempt to help his employer manage unplanned absences from work, the member applied for annual leave on those days. The application for annual leave was refused. On 23 and 24 April 2014 the member was unwell and unable to work. His Doctor certified him as unfit for work and prescribed him medication. He took sick leave for the two days in question. On 12 May 2014 Anglo Coal dismissed the member for failing to attend for a rostered shift.

The Union commenced proceedings in Federal Court alleging that the member was terminated for a reason prohibited by the Fair Work Act 2009 (Cth). Specifically, because he took sick leave and/or because he was a representative of the Union.

On 20 May 2014 the Court heard the Union’s application for an interlocutory order re-instating the member pending the trial of this case. The Court found that there was a “serious question to be tried” in relation to these allegations and the matter is set down for trial in late July 2014 in the Federal Court at Brisbane.

The Court decided to reinstate the member to his employment pending the trial of the Federal Court matter for the following reasons:

1. there are social and psychological benefits associated with the member returning to the duties of his former employment;
2. an offer by Anglo Coal to pay the member’s wages until the trial of the matter did not provide the member with a sufficient remedy because he would still go without the social and psychological benefits of work;
3. the strength of the “serious question to be tried” favoured the Court granting an injunction reinstating the member;
4. there was no evidence to support the submission by Anglo Coal that reinstating the member would undermine discipline at the Mine;
5. there was no evidence to support the submission by Anglo Coal that there had been a breakdown in trust and confidence between the member and Anglo Coal;
6. the Union and the members at the Mine would be inconvenienced if the member was not reinstated because he would be unable to perform the duties of his role as Lodge President; and
7. the Court was not persuaded that, if an order was made reinstating the member, Anglo Coal would be able to stand the member down from his employment with pay pending the outcome of the case (as was contended for by Anglo Coal).

This is a fantastic outcome for the member and the Union. The decision ensures that the member will remain in employment until the Union’s case is heard and determined.

Hall Payne Lawyers has significant experience in running adverse action claims for breaches of he general protections provisions, particularly breaches of section 346 (relating to union membership and industrial activity) of the Fair Work Act 2009 (Cth). It is important that unions seek advice urgently if they believe that adverse action is being taken against a member or official in breach of these provisions. Delay may reduce the prospects of being able to obtain interlocutory relief, for example, reinstating a member or official or restraining such action from occurring pending the outcome of the substantive application.

Should you require advice on a freedom of association matter please contact Charles Massyor Luke Tiley on (07) 3017 2400.