Australian Workers Union v John Holland Pty Ltd

[2000] FCA 1483

FEDERAL COURT OF AUSTRALIA

Australian Workers Union v John Holland Pty Ltd [2000] FCA 1483

INDUSTRIAL LAW – alleged dismissal for reasons which included union membership – interlocutory injunction application – whether serious issue to be tried – whether undertaking of employer to pay wages should be accepted in lieu of interlocutory injunction directing return to work

Workplace Relations Act 1996 (Cth) s 298K(1)(a)

Davids Distribution Pty Ltd v The National Union of Workers (1999) 91 FCR 463 at 501 applied

AUSTRALIAN WORKERS UNION & ANOR v JOHN HOLLAND PTY LTD
NO. V 758 of 2000

HEEREY J
10 OCTOBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 758 of 2000

BETWEEN:	AUSTRALIAN WORKERS UNION AND ANOTHER APPLICANT
AND:	JOHN HOLLAND PTY LTD RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	10 OCTOBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

Upon the respondent undertaking that

1.Commencing 10 October 2000 until the hearing and determination of this application or further order, the respondent will pay Mr McGee the sum of $816.98 per week less appropriate tax deduction.

2.The respondent will not pay Mr McGee the sum referred to in par 1 during any period between 10 October and the date of trial where he is engaged in paid employment.

3.During any period Mr McGee is not engaged in paid employment he is to be available to perform work at the direction of the respondent.

4.During the period 10 October 2000 until the date of trial herein Mr McGee is not to attend any of the respondent’s construction sites except at the direction of the respondent.

the application for an interlocutory injunction is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 758 of 2000

BETWEEN:	AUSTRALIAN WORKERS UNION AND ANOTHER APPLICANT
AND:	JOHN HOLLAND PTY LTD RESPONDENT

JUDGE:	HEEREY J
DATE:	10 OCTOBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. In this case the second applicant, Mr Steve McGee, a member of the first applicant, the Australian Workers Union, claims that the respondent, John Holland Pty Ltd, engaged in conduct contrary to s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) in that it dismissed him for a prohibited reason or reasons that included a prohibited reason. Those prohibited reasons are defined in s 298L, the relevant one being that the person concerned is a member of an industrial association: s 298L(1)(a).

2. Counsel correctly identified the relevant issues for the purposes of this interlocutory injunction application as, first, whether Mr McGee had been employed by John Holland, and, secondly, whether its conduct in terminating his employment was for reasons which included his membership of the AWU.  Counsel for John Holland, properly in my opinion, conceded that there was on the material a serious question to be tried as to the first issue.  I need only add that to my mind the evidence pointed strongly to a conclusion that, viewed objectively, John Holland entered into a contract of employment with Mr McGee.  He in fact attended for work some days after the initial engagement, went through an induction process, went through two medical examinations and was issued with a helmet sticker which contained a payroll number and induction number. 

3. The second issue has to be dealt with in the light of s 298U which reverses the onus of proof.  It is for an employer to prove that the conduct was not carried out for the relevant reason.  As counsel for the applicants pointed out, that section has been considered in an interlocutory injunction context in Davids Distribution Pty Ltd v The National Union of Workers (1999) 91 FCR 463 at 501, where Wilcox and Cooper JJ said:

   “Where there is an application for interim relief in proceedings under the Division, the onus remains upon the applicant to demonstrate that there is a serious question to be tried that the dismissal occurred for a prohibited reason.  If a serious question to be tried is made out in respect of the other ingredients of the alleged contravention, s 298V operates to establish there is a serious question to be tried that the dismissal was for a prohibited reason.  It remains available to the employer to demonstrate at the interlocutory stage that the reason for the dismissal was other than for a prohibited reason.  The weight of that evidence may be such as to persuade the court there is no serious question to be tried.”

4. On the limited state of the evidence available I am satisfied that quite apart from the question of onus there is a triable issue that Mr McGee's membership in the AWU was one of the reasons that his employment was terminated.  No doubt it was also relevant that the other union concerned, the CFMEU, were complaining about alleged non-performance by John Holland of an enterprise agreement, which required preferential employment for former employees.  A breach of that agreement would render John Holland liable under s 178 of the Act.  Also John Holland was very concerned at the cessation of work at other sites.  However, arguably at the very least, it is unreal to attempt to quarantine those questions from the initial hostility of the CFMEU to Mr McGee, which seemed to be, judging by his account of the conduct of Mr Murphy, quite unrelated to the performance of the enterprise agreement and wholly based on Mr McGee's membership of the AWU.  So viewed, his membership formed part of the matrix of circumstances which, albeit via the actions of the CFMEU, bore on John Holland's decision to terminate Mr McGee's employment.

5. The question then becomes whether I should grant an interlocutory injunction directing Mr McGee’s return to John Holland’s workforce or accept the undertaking which is proffered on behalf of John Holland.  That undertaking is in the following terms:

   1.Commencing 10 October 2000 until the hearing and determination of this application or further order, the Respondent will pay Mr McGee the sum of $816.98 per week less appropriate tax deduction.

   2.The Respondent will not pay Mr McGee the sum referred to in paragraph 1 during any period between 10 October and the date of trial where he is engaged in paid employment

   3.During any period Mr McGee is not engaged in paid employment he is to be available to perform work at the direction of the Respondent.

   4.During the period 10 October 2000 until the date of trial herein Mr McGee is not to attend any of the Respondent’s construction sites except at the direction of the Respondent.

6. I think it is appropriate to resolve this case by acceptance of the undertaking proffered.  As I have said, I think Mr McGee at this stage of the case has made out a case for some protection and should certainly not be sent away empty-handed.  But the choice between injunction or undertaking calls for a consideration of what course is most likely to preserve the status quo with minimal interruption to the parties and, indeed, other parties in this industrial setting.

7. Counsel for the applicants urged that the applicants’ case was a strong one and that may be so, at least at this stage of the case, where the material is necessarily incomplete and evidence untested by cross-examination.  However, the purpose of interlocutory relief is not to vindicate rights in any final sense but simply to protect asserted rights in a practical way until the court can properly determine entitlement.  If a case is thought to be so strong as to be beyond argument the appropriate course is to seek summary judgment.

8. I think an injunction would quite likely cause substantial disruption.  I am not sure that it is a practical answer to that prospect to say that John Holland could commence further litigation against the CFMEU for breach of s 298P(3).  If the undertaking is given, Mr McGee’s practical interests, and in particular his financial problems, will be satisfied in the interim.  Although Mr McGee has a number of skills and qualifications, there is no evidence that he needs to work and, in particular for John Holland, to keep up skills.  Neither is this otherwise a situation where the actuality of employment as opposed to the remuneration is of substantial importance for the employee. 

9. So upon the respondent giving the undertaking mentioned I will dismiss the application for an interlocutory injunction and hear counsel as to what further directions should be made.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             20 October 2000

Counsel for the Applicant:	Mr W L Friend
Solicitor for the Applicant:	Maurice Blackburn Cashman
Counsel for the Respondent:	Mr M P McDonald
Solicitor for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	10 October 2000
Date of Judgment:	10 October 2000