Construction, Forestry, Maritime, Mining and Energy Union V BM Alliance Coal Operations Pty Ltd (No 2)
At a glance
- 1
What happened
Kim Star was employed by WorkPac and deployed to work at BM Alliance's Goonyella Riverside Mine from 2013 to November 2017. On 10 November 2017, BMA advised WorkPac that Star was no longer required. Star's employment was terminated on 13 November 2017 and she filed an unfair dismissal application. The Fair Work Commission found her dismissal unfair and ordered reinstatement. When WorkPac sought BMA's approval to reinstate Star, BMA refused on 24 September 2018. The CFMMEU then sued BMA for adverse action under Part 3-1 of the Fair Work Act.
What was decided
The court dismissed BMA's interlocutory application seeking summary dismissal of the union's proceedings. The critical issue was whether section 725 of the Fair Work Act barred the CFMMEU's application on the grounds that Star had already made an unfair dismissal application. The court found that section 725 applies only to applications made by the dismissed person themselves, not to applications made by unions on behalf of dismissed workers.
What it means for employers
Employers should not refuse to reinstate workers who have won unfair dismissal cases, as this may constitute adverse action under general protections provisions. Unions may bring general protections claims even where dismissed workers have brought unfair dismissal applications.
What it means for employees
Employees should be aware that unfair dismissal remedies and general protections claims are separate. Unions may pursue general protections claims where employers take adverse action (such as refusing reinstatement) arising from a worker's employment rights.
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