Union succeeds in two Federal Court general protections claims against host employer in labour hire scenario

In two recent Federal Court decisions, the CFMMEU has been successful in its general protections claims brought against the BHP Mitsubishi Alliance coal mine as the host employer in a labour hire scenario.

The two cases are as follows:

• Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 3) [2022] FCA 1345 (11 November 2022) (November 2022 Case); and
• Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2023] FCA 30 (30 January 2023) (January 2023 Case).

The November 2022 Case

In this case a labour hire employee was employed by WorkPac Pty Ltd (WorkPac). WorkPac had a commercial relationship to supply labour to BM Alliance Coal Operations Pty Ltd (BMA/the principal) at a mine.

The employee exercised workplace rights whilst working at the mine where:

• s. 274 of the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act) gives mine workers the right to refuse to undertake tasks which may place the worker in immediate personal danger – here the employee refused to dump a load of rejects at a ramp area because of her belief that she would be in immediate personal danger in doing so due to inadequate lighting;
• in refusing to dump the load the employee was exercising a workplace right arising from the Safe Loading SOP which was a workplace instrument within the meaning of s. 12 of the Fair Work Act 2009 (FW Act) given the SOP was made pursuant to the CMSH Act and the CMSH Regulations and required adequate lighting be in place to illuminate relevant areas; and
• the employee was required to undertake a drug and alcohol test in accordance with the workplace instrument of the Fitness for Work Policy; the employee’s participation in that test was participation in a process or proceedings under a workplace instrument; and the employee’s participation in the test was in the discharge of a responsibility imposed by a workplace instrument.

Subsequently BMA emailed WorkPac notifying them that the employee was “no longer required” at the mine. The employee was later terminated by WorkPac. The FWC determined the dismissal was unfair and ordered WorkPac to reinstate the employee to her former position. WorkPac sought permission from BMA for the employee to return to work at the mine but BMA refused that permission.

The court held BMA’s conduct in excluding the employee from the mine, and continuing to exclude her, constituted adverse action and/or advising, encouraging or inciting WorkPac to take adverse action against the employee within the meaning of the FW Act. Critically, the court also found that BMA’s reason for taking such action was because the employee had exercised workplace rights. The court found that BMA’s actions therefore contravened the general protections provisions of the FW Act.

This case is of particular importance as it demonstrates that a host employer can be found liable for breach of the general protections provisions in the FW Act in relation to conduct towards a labour hire worker – even though there is no contractual relationship between the host employer and the labour hire worker.

The January 2023 Case

The January 2023 case was factually similar to the November 2022 case. Here a different employee of WorkPac was supplied by WorkPac to BMA as a labour hire worker.

The union was also successful in this general protections case against BMA, with the court declaring that BMA took adverse action against the WorkPac employee by refusing to make use of the services of the employee as offered by WorkPac and excluding the employee from the mine for reason of the employee having exercised workplace rights.

Key take-aways

Businesses that use labour hire need to be mindful of the risk of a general protections claim against them by a labour hire worker – especially in circumstances where the host employer ceases the engagement of a labour hire worker. 

If you would like more information about these cases, please contact our office on +61 2 9233 3989.

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.