The Scab Sign Incident
On 7 November 2012 Justice Jessup of the Federal Court of Australia gave his judgment in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3)  FCA 1218. The case was a claim under the general protection provisions of the Fair Work Act 2009 (Cth) (the Act) and concerned whether a CFMEU member, Mr Doevendans, was dismissed from his employment because of a prohibited reason including his participation in industrial activity and because he was a member or officer of an industrial association.
Mr Doevendans was a long time employee of BHP Coal Pty Ltd on the Saraji Mine (Near Moranbah, Queensland) owned by the BHP Billiton Mitsubishi Alliance. During a CFMEU protected action, namely a protest and stand down, Mr Doevendans had held up one of four signs which said:
A complaint from a human resources employee of BHP who saw the sign when entering the worksite (i.e. crossing the picket line) stated she had felt intimidated by the sign. This precipitated an investigation, followed by a warning letter, two meetings and culminating in Mr Doevendans’ employment being terminated. In forming the decision to terminate Mr Doevendans’ employment, BHP relied on, in its view, Mr Doevendans’ flagrant breach of its Workplace Conduct Policy and BMA Charter Values.
Justice Jessup did not accept CFMEU’s argument that Mr Doevendans had been targeted for dismissal because of his position as Vice President of the Saraji Mine CFMEU Lodge, his work in that capacity and or his alleged exercise of workplace rights. He did however find for the applicant on other grounds.
The Reverse Onus of Proof in General Protections Claims
In an adverse action claim brought under the general protections provisions of the Act, the employer bears the onus of proving they did not take an adverse action against the employee for a prohibited reason.
Justice Jessup reflected on the recent High Court decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay  HCA 32 and considered that in the context of this case, s 361 of the Fair Work Act 2009 (Cth);
“should not be understood as casting upon the respondent the obligation of proving that its reasons were completely disassociated from the circumstance that the dismissed employee was a member of an association.” i
Was Mr Doevendas terminated because he exercised a workplace right?
The CFMEU had claimed that Mr Doevendas had been terminated because he had exercised a workplace right through his participation in industrial activity in the form of the protest. Mr Doevendans had not been rostered on to work the week of the strike or protest. He had not participated in the industrial action as he was not striking from work. Accordingly, Justice Jessup did not accept that Mr Doevendans had been terminated for exercising a workplace right.
Was Mr Doevendans Terminated because he was a Member or Officer of an Industrial Association?
His Honour concluded that BHP had not terminated Mr Doevendans employment due to his being a member of the CFMEU as it was the actions of Mr Doevendas and not his role which caused the termination.
His Honour held that the Saraji Coal Mine Lodge of the CFMEU was not a branch of the CFMEU or an industrial association in its own right, and Mr Devoevdans was not an officer of the CFMEU despite being an “officer” of the Lodge. Mr Doevendans was therefore not dismissed because he was an officer of an industrial association (even though the decision maker may have assumed he was).
Was Mr Doevendans’ action an offence under the Summary Offences Act 2005 (QLD)?
BHP claimed that the holding of the sign was public nuisance offence under s 6 of the Summary Offences Act 2005 (QLD) and therefore the applicant was not entitled to claim that Mr Doevendans had been adversely treated for engaging in (lawful) industrial activity. While Justice Jessup accepted that the word “Scab” was offensive he considered that the holding of the sign or the sign itself did not interfere with the peaceful passage of the road by a road user. On this basis Mr Doevendans’ holding of the sign was not an offence under s 6 of the Summary Offences Act 2005 (QLD) and not unlawful on this basis.
Had Mr Doevendans Committed an Adverse Action Against Fellow Employees?
BHP asserted that in displaying the sign Mr Doevendans had contravened s 346(c) of the Fair Work Act 2009 (Cth) and taken an adverse action against employees not taking part in the protected industrial action. It was claimed Mr Doevendans had prejudiced the employment of those employees by holding the sign which constituted an attack on them. Justice Jessup concluded that as there was no effect on the employee’s actual employment ( a relationship with the employment was not sufficient) and therefore this claim could not succeed.
Was Mr Doevendans terminated because of his industrial activity?
The protest was organised by the CFMEU. Thus, Mr Doevendans holding and waving of the sign was participation in a lawful activity organised by an industrial organisation. Mr Doevendans employment was terminated because of holding the sign (an industrial activity). As a result, his termination was a contravention of s 346(b) of the Fair Work Act 2009 (Cth).
Justice Jessup took evidence that the CFMEU used the word scab throughout various stickers, signs and posters which it then distributed to its members. Further the word scab was used within the CFMEU to describe workers who continued to work throughout industrial action. On this basis his Honour concluded that it was the view of the CFMEU that scabs or employees who continued to work throughout a strike should be castigated.
Thus, Justice Jessup held that in displaying the sign at the protest, Mr Doevendans was advancing the views and interests of an industrial association, namely the CFMEU. This was a further reason why BHP had breached s 346 of the Act in terminating Mr Doevendans’ employment on account of his holding the sign.
What was BHP Ordered to do?
Considering that Mr Doevendans had not been terminated for any behaviour in the workplace and had no history of problems at work Justice Jessup ordered that Mr Doevendans be reinstated to the position he was employed in prior to termination. Pending the making of submissions by the parties, there may be further orders made in the proceedings as to penalties.
Moral of the Story
Notwithstanding the reversal of the Full Federal Court’s decision in Barclay by the High Court, Employers need to consider very carefully, employee behaviour which may well be offensive to some, but which at the same time may be undertaken as part of lawful industrial activity. If such offensive conduct occurs as part of lawful industrial activity it may well be protected and any adverse action taken by an employer in consequence, subject to sanction from the courts.
iConstruction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3)  FCA 1218 at 52.