<span class="" id="parent-fieldname-description"> A three-votes-to-two ruling by the High Court of Australia has raised questions over an employerâs rights to sack a worker who appears to be acting within the rules of the Fair Work Act. </span> <p>A ruling last week confirmed that BHP Coal was within its rights to sack an employee who held up a sign targeting “scab” workers during a lawful protest at the Saraji Mine in Central Queensland in 2012.<br /><br />Former BHP employee and union delegate Henk Doevendans was sacked by the coal miner a few months after he took part in a lawful protest organised by the Construction, Forestry, Mining and Energy Union (CFMEU).<br /><br />According to court evidence Doevendans – who was not rostered to work during the strike period – waved a sign throughout the strike protest reading “No principles SCABS No guts”. His employment was subsequently terminated.<br /><br />The CFMEU brought proceedings to the Federal Court of Australia, saying that Doevendans’ sacking contravened the Fair Work Act, because the Act prohibits an employer from sacking a worker for taking part in lawful union activity.<br /><br />Saraji’s general manager, Geoff Brick, however, argued at the time of Doevendans’ sacking, and to the court, that Doevendans’ “repeated and deliberate” use of “scab” was “an offensive, intimidating and humiliating word.”<br /><br />In industrial relations, the term “scab” is commonly used by striking union workers to criticise those who choose to work for the employer during organised strikes.<br /><br />Brick said the term had “the potential to cause workers and other people at the Saraji Mine to feel harassed, insulted, abused, bullied and intimidated.”<br /><br />He said Doevendans’ actions were therefore a “flagrant violation” of BHP’s workplace policy, and that this was known by Doevendans.<br /><br />The first judge who heard the case in the Federal Court accepted Brick’s evidence, but still ruled that Doevendans’ sacking was a contravention of the Fair Work Act. However, that conclusion was later reversed by a Full Court decision.<br /><br />In response, the CFMEU appealed that decision to the High Court. The High Court rejected that appeal in a decision handed down late last week.<br /><br />The High Court’s five member panel was split three-to-two on the matter.<br /><br />On one hand, the court said, it could be argued Doevendans was sacked because of actions he took during an organised and lawful strike, and thus his sacking was illegal. On the other hand, his actions were ruled to be in violation of BHP’s employee conduct policy, and judges argued that the Fair Work Act should not make organised strikes ‘safe zones’ where workers are able to freely violate such conduct policies.<br /><br />CFMEU mining and energy general secretary Andrew Vickers was displeased with the decision.<br /><br />He was quoted by Fairfax as saying the decision was a “blow to workers’ rights, freedom of expression and participation in lawful industrial activity”.<br /><br />“We maintain that industrial laws should protect workers acting in the pursuit of fair work arrangements from being sacked,” Vickers reportedly said.<br /><br />“The real story here is that mining multinationals like BHP are increasingly ruthless in their treatment of workers. In this case they have used the excuse of a code of conduct to put a worker out of a job.”<br /><br />Doevendans worked with BHP Coal for 24 years prior to his dismissal.<br /><br />Australian Mines and Metals Association executive director of policy Scott Barklamb welcomed the court’s decision.<br /><br />“Industrial hate speech like ‘scab’, ‘dog’ and ‘mongrel’ must become as unacceptable in our society as insults and discrimination based on race, sex and religion,” he said.</p>
