Mine Operator took unlawful adverse action against an employee of independent contractor, a Court has found

Construction Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2023] FCA 30

The Workpac employee, contracted to work at BHP’s Daunia Coal Mine (Mine), alleged that BHP took adverse action against him when it excluded him from the Mine because he had exercised workplace rights.

The casual worker worked exclusively at the Mine for just over 6 months, when he was stood down by his employer (Workpac) pending an investigation into allegations of misconduct.

The allegations included that the worker had breached the Mine’s Isolation and Tagging Standard Operating Procedure (SOP) and had also been using a SOP from a different mine site. The worker denied all allegations.

While the allegation about using a wrong SOP was later withdrawn, the ‘Isolation and Tagging’ allegation was substantiated, resulting in Workpac issuing the worker a written warning on 16 January 2020.

On the same day, Workpac terminated the worker’s casual assignment at the Mine. It wrote to the worker advising:

The worker filed a General Protections claim against both WorkPac and BHP, for taking unlawful adverse action against him, because he had exercised workplace rights by:

1. making complaints about an unsafe overtaking manoeuvre and adherence to Traffic Rules SOP; and
2. refusing to remove an out of service tag when he had no authority to do so under the Isolation and Tagging SOP.

He later discontinued his claim against Workpac but proceeded against BHP.

BHP denied taking adverse action against the worker and said the general protections provisions did not apply to employees of Workpac, only to Workpac as the contractor to BHP.The Judge rejected that argument and held the protections did apply as between the worker and BHP, as the principal.

The Judge also went on to find that the SOP’s were ‘workplace instruments’ within the meaning of s 12 of the Act, and that the worker had exercised ‘workplace rights’, by performance or discharge of a role or responsibility, as sections 39 and 43 of the Coal Mining Safety and Health Act 1999 (Qld) bind coal mine workers to comply with the safety health management system, put into practical effect by the SOPs.

BHP’s decision-maker gave evidence that he made the decision to exclude the worker because the worker was an ‘unacceptable safety risk’ because he refused to participate in the investigation about using an incorrect SOP. The Judge found this ‘implausible’.

In finding that BHP took adverse action against the worker for reasons which included, as a substantive and operative reason, his exercise of workplace rights in contravention of the Act, the Judge found “…the evidence indicates that [the worker] insisted on exercising workplace rights at the mine, and that in so doing he essentially aggravated management at the mine…”

The Judge will hear from the parties further as to compensation for loss and damage, and pecuniary penalties.

Implications

While a host employer may contractually be entitled to deny access to a labour hire worker, that act may be unlawful if taken because of a prohibited reason. In circumstances where an employee has exercised a workplace right, an employer should proceed carefully if it proposes to make adverse decisions involving a worker.

An employer seeking to rebut the presumption that adverse action was motivated by an unlawful reason, will need to produce persuasive evidence to demonstrate lawful reasons for acting.