The Federal Court has found that a warning letter to a coal mineworker who took unauthorised leave to attend a union meeting was not adverse action, saying the Fair Work Act was not intended to restrict employers' authority to take disciplinary action.

Justice Anna Katzmann held that the Bengalla Mining Company Pty Ltd – part of the Rio Tinto group – had discharged its onus of proving that its warning letter to the electrical technician, who was the Bengalla lodge president and its representative on the CFMEU (mining & energy division) northern district's board of management, was not for a prohibited reason.

"I am persuaded by the evidence of the Bengalla witnesses that neither [the employee's] union membership, nor his position as an officer of the union, nor the fact that he was absent from work to attend a Board of Management meeting had anything to do with Bengalla's decision to take disciplinary action against him," she said.

The company refused the technician unpaid leave to attend a union board of management meeting in August last year, with his supervisor citing the Rio Tinto leave policy, which applied at Bengalla.

It states that unpaid leave "may" be granted "where an employee has used all of their other relevant accrued leave". The employee at the time had a substantial amount of accrued paid leave.

His supervisor in refusing the application – after consulting with other managers - said the company had no objection to the time off, but was unable to provide "unpaid leave".

The technician responded that he intended to go to the August meeting anyway, which he did.

Justice Katzmann held that, "In truth, what the union sought was preferential treatment".

She said its "real complaint was not that Bengalla took into account [the employee's] union status and commitments, but that it failed to take them into account".

Justice Katzmann continued that if the CFMEU were right, then "no employer who took adverse action against an employee knowing the employee to be a member or officer of a union, or knowing that the employee was engaging or intending to engage in industrial activity, could ever discharge its onus of proof".

"On the union's argument, an employer who dismissed an employee for admittedly sexually assaulting a fellow employee or for stealing from the company would contravene the Act and face the prospect of civil penalties merely because it knew that the employee was a union member or officer, or was engaged in an industrial activity.

"And what if the sexual assault occurred at a union conference or the money was stolen to finance striking employees? The Act was not intended to limit the authority of an employer to take disciplinary action in circumstances such as these. There is a difference between knowing something and taking action for that reason."

She said the CFMEU's argument was not materially different from that the High Court rejected in Barclay (see Related Article) and "to accept it would invite the very criticism levelled at the union parties in that case".

The mineworker at the centre of the case applied unsuccessfully in June last year for unpaid leave to attend the division's two-day national convention in October, stating "official union business as [Board of Management] representative of union" on his application form.

After that was refused as against the company's leave policy, he made his second unsuccessful application for unpaid leave to attend the August board of management meeting.

The warning letter he received as a result of his unauthorised leave to attend that meeting stated that "further incidents of this behaviour will result in disciplinary action. Termination of your employment at Bengalla may result."

The technician later applied for – and was granted – paid leave for the two days of the October convention, while a further application for unpaid leave to attend a November board of management meeting was rejected.

The CFMEU argued that the Bengalla managers' denials that that their actions had anything to do with the employee's union role were not credible and had to be weighed against the evidence that they knew the technician's proposed absence was to attend a union meeting,

Justice Katzmann, however, said she was "not persuaded" by its submission.

CFMEU v Bengalla Mining Company Pty Litd [2013] FCA 267 (28 March 2013)