Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3)
Citation: [2012] FCA 1218
At a glance
- Employees affected
- 1
What happened
Henk Doevendans worked as a machinery operator at BHP Coal's Saraji mine. The CFMEU had a lodge at the mine. On 21 May 2012, Doevendans held and waved a sign during a protest at the mine. The sign allegedly contained offensive language. BHP dismissed Doevendans, stating the reason was holding and waving the offensive sign during a protest. Doevendans argued the dismissal was unlawful because he was a CFMEU member and officer, was participating in lawful activity organized by the union, and was representing the union's views and interests.
What was decided
Justice Jessup found that Doevendans was indeed an officer of the CFMEU lodge and that his conduct in holding the sign and participating in the protest constituted participation in lawful activity organized by the union and representation of the union's views. The dismissal was taken because of these factors (union membership, officer status, and participation in union activity), which constituted adverse action in breach of section 340 of the Fair Work Act. The court ordered Doevendans' reinstatement.
What it means for employers
Employers cannot dismiss employees because they are union members or officers, or because they participate in lawful union-organized activities or represent union interests. Even if an employee's conduct during a lawful protest is objectionable to the employer, dismissal on those grounds is unlawful.
What it means for employees
Employees who are union members or officers have protection against dismissal for that status or for participating in lawful union-organized activities. Employers cannot use employee participation in peaceful protests or other lawful union activities as grounds for dismissal.
Want this applied to your situation?
Reading the decision is free. FairWork Mate goes further — it reads the full case library and applies precedents like this one to your specific facts, citing the cases as it reasons. General information, not a guaranteed outcome or legal advice.
Every statement above is drawn from the published decision. Read the original here:
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2012/2012fca1218Want more cases like this?
FairWork Mate tracks Fair Work Ombudsman, Fair Work Commission and Federal Court decisions across Australia. The AI advisor answers plain-English questions grounded on the full corpus — awards cited, industry, penalty amounts and affected employee counts — with a citation to the underlying decision on every answer.
Individual case summaries on this site are free. Full-corpus advisor access is a paid product — Business Solo from $99/mo, 50% off your first 3 months for the first 100 signups.
Get notified on new Fair Work cases
Free email alerts when we publish new underpayment decisions, penalty orders, and workplace law updates.
Free forever. No spam. Unsubscribe anytime.
This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →