Australia: Employees engaged in lawful industrial activity aren't immune from adverse action, says High Court

Last Updated: 21 October 2014

An employee whose actions while on a stop-work protest breached his employer's Code of Conduct was dismissed lawfully, according to the High Court (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41) – but the nature of the decision means employers should be careful before they take disciplinary action which is prompted by an employee doing something in the course of undertaking lawful union activity.

Mr Doevendans stops work and starts protesting

Employees of BHP Coal at seven coal mines were taking industrial action in support of negotiations for an enterprise agreement in February 2012. Mr Henk Doevendans was one of the employees (and active CFMEU member) who stopped work and protested. He repeatedly waved a sign saying:

"No principles
No guts"

Non-striking workers told management they felt intimidated by that conduct. The general manager, Mr Geoff Brick, in explaining his reasons for dismissing Mr Doevendans said that "scabs" is "an offensive, intimidating and humiliating word" which could make others feel "harassed, insulted, abused, bullied and intimidated", and that he regarded the conduct as contrary to the mine's Code of Conduct. He also gave evidence, which was accepted by the trial judge and not challenged on appeal, that he considered Mr Doevendans to be unrepentant, defensive, arrogant, and unlikely to change his ways.

On 21 May 2012 BHP Coal terminated his employment. The CFMEU then began proceedings, claiming that the dismissal was adverse action in contravention of section 346(b) of the Fair Work Act, in particular, that it was action taken because of the fact that Mr Doevendans had engaged in industrial activity by way of:

  • participating in a lawful activity organised or promoted by a union (section 347(b)(ii)); and
  • representing or advancing the views claims or interests of a union (section 347(b)(v)).

Under the provisions the activity doesn't have to be the sole reason, only one of the reasons (section 360). Also, it is presumed that the action taken by an employer for the prohibited reason alleged, unless the employer establishes otherwise (section 361).

The court's role is to decide why the employer took the adverse action against the employee, and, given the reverse onus, whether or not the employer has established that the operative reasons for its action did not include any of the prohibited reasons alleged.

Mr Doevendans' dismissal not for a prohibited reason

Mr Brick, the relevant decision-maker, gave evidence that he did not dismiss Mr Doevendans because he engaged in the protest or because he was representing union views. He said he was dismissed because he had used language that the employer considered contrary to its workplace culture and Code of Conduct.

The first instance judge made findings in those terms but went on to conclude, in essence, that those reasons could not be distinguished from reasons based in Mr Doevendans' participation in a lawful activity organised by a union and because he had represented and advanced the views and interests of the union. He therefore found the contravention made out.

A Full Court of the Federal Court reversed the finding. Justices Dowsett and Flick concluded that BHP Coal had not dismissed Mr Doevendans because he had engaged in industrial activity within the meaning of either section 347(b)(iii) or section 347(b)(v). In dissent, Justice Kenny concluded that BHP Coal had not proved that Mr Doevendans' representing or advancing the views of the CFMEU written on the sign was not a reason for his dismissal.

On appeal by the CFMEU from that decision, the majority of the High Court (Chief Justice French and Justice Kiefel, with Justice Gageler delivering a separate judgment agreeing in the result) said that what a Court had to do was to determine as a fact what the reasons were which motivated the employer to take the adverse action – and this was a different exercise from reaching a conclusion as to whether the adverse action was connected to industrial activity. Just because the conduct attracting the punitive action by the employer was connected to industrial activity did not mean that the punitive action was taken because the employee engaged in industrial activity. They said that once Mr Brick's reasons had been accepted as genuine (ie. that the dismissal was because of breach of the company's code of conduct), that was the end of the matter; the employer had discharged the onus to establish that the dismissal was not because Mr Dovendans had engaged in industrial activity in either of the senses alleged.

Showing the complexity of the issue, however, the two dissenting judges, Justices Hayne and Crennan, both noted that the language on the sign, albeit offensive was lawful, and held that the reasons for dismissing Mr Dovendans could not be divorced from reasons based on Mr Doevendans' lawful activity.

What does this mean for employers?

One clear result is that conduct of an employee-unionist that can be characterised as the representation or advancing of views or interests of a union is not absolutely protected. If it offends or is inimical to values that an employer requires of its employees, then an employer may well be able to take disciplinary action.

In practice however employers will still need to be cautious. As the dissenting judges argued, it can be hard to draw a bright clear line between the taking part in industrial action, and the way the employee actually takes part. They will also still have to show that the adverse action was not taken for a prohibited reason – and mere assertion won't be enough.

To minimise risk employers should ensure that:

  • Where possible, disciplinary decisions are based upon well-developed and sound policies and/or codes of conduct.
  • They ensure that the decision-maker acts on, expresses their reasons for acting and can defend their decision, by reference to those policies/codes and the values behind them, particularly in cases involving industrial activity.
  • They undertake a robust and defensible investigation process to form the basis (and evidence the objective reasons) for any decision to implement disciplinary conduct.

You might also be interested in...

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.