Mining giant to be fined after employee sought to exercise safety rights

Mining giant to be fined after employee sought to exercise safety rights

An employee who was removed from a roster and denied access to a mine site has succeeded in an adverse action claim against one of the largest mine operators in Australia.

The employee, ‘Ms ‘, was employed by labour-hire contractor, WorkPac, to work as a casual machinery operator at the Goonyella Riverside Mine from October 2013 until November 2017. The mine is operated by mining giant BM Alliance Coal Operations Pty Ltd (BMA).

Ms S’s restriction to the site followed an incident on the evening of 9 November 2017. She was operating a tip-truck collecting rejected land mass from the wash plant and unloading the land mass onto ramp 14.

Various Standard Operating Procedures (SOP) developed by BMA regulate safety procedures and processes to be followed on-site.

The relevant SOP provided, “Ensure adequate lighting is in place to illuminate the work area, having consideration for shadow, contrast and glare. Additional lighting sets may need to set-up for night-time operations”.

On delivery of the first load of the evening, there were no lights on ramp 14 to enable her to see where she would unload her truck. She was spotted by a BHP employee, Mr H, who directed lights from the grader he was operating to illuminate the ramp to enable her to unload the first load.

She then spoke to Mr H over the radio and told him that separate lighting was required to light the ramp before she caused her truck to dump the second load as it was unsafe. She subsequently attempted to contact both her supervisor and Mr H’s supervisor without success and waited to complete the unloading of her truck.

During this time, she was contacted by the dispatch area to commence her crib break and was then told she was required to complete a random drug test as permitted by the Fitness for Work policy.

On the following day, the operator was told by her employer that she was “no longer required” at the mine and was terminated by WorkPac on 13 November 2017. Following a successful unfair dismissal claim, she was reinstated to her employment with WorkPac, but on 24 September 2018, BMA informed WorkPac that she was not permitted to return to the site.

Justice Collier accepted that both the SOP and the Fitness for Work Policy were ‘industrial instruments’ within the meaning of s 12 of the Fair Work Act 2009 and, therefore, capable of conferring upon Ms S a workplace right. He also found that the Coal Mining Safety and Health Bill 1999 (Qld) permits a coal mine worker to remove himself or herself to a position of safety and refuse to undertake an allocated task that may place the worker in immediate personal danger if he or she believes there is immediate personal danger.

Justice Collier accepted that Ms S’s refusal to undertake the task was warranted in the circumstances, and therefore she was entitled to exercise a workplace right. He further concluded that the decision to restrict her access was linked to the truck incident.

The application for her adverse action claim was successful, and the Honourable Justice directed the parties to submit appropriate penalties for the determination of the matter.

Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 3) [2022] FCA 1345

For queries about contractors, safety, adverse action, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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