Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) brought an application against Absolute Commissioning Group Pty Ltd, seeking interlocutory relief for the reinstatement of two employees, Mr Shoemark and Mr Brazier, who were dismissed from their positions as Grade 5 Electrical Workers. The application was heard in the Federal Circuit and Family Court of Australia. The CEPU argued that the dismissal of Mr Shoemark and Mr Brazier contravened the terms of their Enterprise Agreement and the Fair Work Act 2009 (FWA), particularly in relation to the consultation requirements and the protection of workplace rights exercised by the employees as Health and Safety Representatives (HSR).

The court needed to decide whether the CEPU had established a prima facie case for the alleged contraventions and whether the balance of convenience favoured the grant of interlocutory relief. The CEPU submitted that there was a serious question to be tried regarding the compliance with the Enterprise Agreement and FWA, citing the lack of consultation and the timing of the dismissals in relation to the employees' exercise of workplace rights. The respondents argued that the dismissals were due to the principal contractor, UGL, no longer requiring their services, and that the decision to terminate was made by the sole decisionmaker, Mr Hitchens.

The court found that the CEPU had made out a prima facie case but concluded that the balance of convenience did not favour the grant of interlocutory relief. The court considered the usual undertaking as to damages offered by the CEPU and found that refusing the interlocutory relief would not cause significant hardship to the respondents, while granting it might interfere with the ongoing project and the rights of other employees. Therefore, the application for interlocutory relief was dismissed, and the proceeding was referred to the National Operations Registry for allocation to a docket judge.