The CFMEU has taken a case to the High Court to be able to use the term ‘scab’ during industrial action.
The case originally began during the long industrial action which crippled BMA in 2012.
Hank Doevendans, a miner at the Saraji coal mine, was sacked after he waved a sign that stated: "No Principles – Scabs – No Guts" during protected stoppage time.
According to the lawyers for BHP, in the case before the High Court the dispute rests on the "power given to employers to control the degree of decorum in the conduct of a picket".
This was rejected by the barrister for the unions, who stated that it did not matter what the sign said as it was held during "lawful industrial activity".
However he was not the only worker sacked during this period of industrial action.
During strikes at the Norwich Park coal mine former miner Walter Meacle was accused of abusing non-union worker Trevor Loader during strike action.
Meacle was accused of yelling "scab c**t” at Loader and jumping a barrier to give him "the finger" during industrial action.
After investigating the incident BMA terminated Meacle's employment, but he and the Construction, Forestry, Mining, and Energy Union deny the event took place.
In the opening day of the Fair Work court battle Meacle admitted to "yelling words at vehicles" but denied specifically targeting Loader.
Meacle told the court Loader fit his definition of a scab but he could not see a reason why BMA would specifically dismiss him for strike action when thousands of workers had also joined him.
Lawyers representing BMA and Meacle spent three days arguing over whether the accused had done anything wrong.
The CFMEU's lawyer Warren Friend denied the allegations against Meacle, saying coarse language, such as the word scab, was simply part of the picket line and therefore was protected from BMA's code of conduct.
Similar incidents occurred last year as well during industrial action at Energy Australia’s Yallourn Power station, with one employee claiming the word ‘scab’ was spray-painted on his fence.
The use of the word scab has now gone to the high court, with the CFMEU attempting to define it as protected language.
According to theCFMEU's Andrew Vickers the High Court case “is about upholding workers’ rights to freedom of expression and participation in legitimate and lawful industrial activity”.
“We argue the Fair Work Act allows workers to participate in protected industrial activity in the pursuit of fair work arrangements without being sacked for it.
“In this case, the worker in question was taking part in lawful protected industrial activity, along with many others. We believe he was targeted for sacking not because he was holding a sign but because he was a union delegate,” Vickers said.
“The word 'scab' is of common and historical use in Australian industrial disputes.”
Wood went on to attack the original decision by BMA owner BHP to sack Meacle, saying “in this case they have used the excuse of a 'code of conduct' to put a worker out of a job”.
“We mustn't allow big corporations to further limit the rights and freedoms of Australian working people. Allowing this sacking to stand would set a disturbing precedent.”
When BHP was contacted it declined to comment, stating “as this matter is before the High Court it is not appropriate for us to comment at this time”.
The judges have reserved their decision.