Construction, Forestry, Mining and Energy Union v Boom Logistics Ltd
[2013] FCA 1472
FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining & Energy Union v Boom Logistics Ltd [2013] FCA 1472
Citation: Construction, Forestry, Mining & Energy Union v Boom Logistics Ltd [2013] FCA 1472 Parties: CONSTRUCTION, FORESTRY, MINING & ENERGY UNION v BOOM LOGISTICS LTD File number(s): QUD 796 of 2013 Judge(s): DOWSETT J Date of judgment: 6 December 2013 Legislation: Fair Work Act 2009 (Cth) ss 50, 340, 344, 346, 347 Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 cited Date of hearing: 6 December 2013 Place: Brisbane Division: FAIR WORK DIVISION Category: No Catchwords Number of paragraphs: 9 Counsel for the Applicant: Mr R Reid Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondent: Mr M G Rinaldi Solicitor for the Respondent Mr Warren Swain
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 796 of 2013
BETWEEN: CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
ApplicantAND: BOOM LOGISTICS LTD
Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
6 DECEMBER 2013
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.the interlocutory application is dismissed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 796 of 2013
BETWEEN: CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
ApplicantAND: BOOM LOGISTICS LTD
Respondent
JUDGE:
DOWSETT J
DATE:
6 DECEMBER 2013
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Since late in 2012 the respondent has been negotiating with members of its workforce with a view to varying the conditions under which they are employed, apparently because of a downturn in the amount of work available to the respondent, and therefore for the employees to perform. Throughout that period, it has been suggested from time to time that, in the event that agreement could not be reached as between the respondent and its workforce, redundancies would be likely. There have been a number of redundancies. Relatively recently three people Mr Simon Kaye, Mr Simeone Bartolo, and Mr Jimmy-Ray Foster were retrenched.
The applicant has commenced proceedings for declaratory relief concerning the circumstances in which these redundancies occurred, alleging breaches of ss 50, 340 and 344 of the Fair Work Act 2009 (Cth) (the “Act”). In the course of argument, the applicant abandoned reliance upon s 344 for the purposes of the present interlocutory application, but not otherwise. The applicant submits that on the basis of alleged breaches of ss 50 and 340 of the Act, I should grant interlocutory relief, effectively reinstating the three employees, pending the determination of this matter. The respondent submits that such a mandatory injunction should only be granted after careful examination of the relevant material. Of course, no injunction should be granted other than after careful examination of the relevant material.
Today, argument has focussed primarily upon the applicant’s prospects of success in the ultimate proceedings. There can, I think, be no doubt that employees who are made redundant are likely to suffer inconvenience and unpleasantness as described in some detail in the affidavit of Ms Thomas, filed on 29 November, particularly at paras 69 ‑ 81. I accept, too, that the respondent is experiencing unprofitable trading circumstances, and that at least to some extent, it seeks to alleviate that problem by the redundancies which it has effected, and which it may have to effect in the future. Those are the factors relevant to the balance of convenience. As between the two sets of inconvenience, I am inclined to think that in the circumstances of this case, those of the employees outweigh those of the respondent. I say that without regard to the prospects of success in the proceedings.
Section 340 provides that a person must not take adverse action against another person because the other person has a workplace right or has or has not exercised a workplace right. In the present circumstances, it is suggested that the relevant employees had workplace rights pursuant to an enterprise agreement, which is exhibited to Ms Thomas’ affidavit. In particular, it seems they were entitled to particular hours of work, which I infer, were considered to be favourable to them. I infer that they and other employees wished to maintain those conditions, notwithstanding the respondent’s desire to vary them. The applicant submits that the evidence raises a sufficiently strong prospect that the three employees were dismissed because they insisted upon relying on the terms of the enterprise agreement.
In my view the relatively recent decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 applies to proceedings to enforce s 340, in the same way as it was applied in that case to proceedings to enforce ss 346 and 347. It is relatively clear that the respondent was, throughout 2013, seeking to reduce its wages bill. There seems to be no reason to doubt that such desire was genuine. It is not appropriate or necessary that I form a final view on that matter. Given the length of time over which changes in the conditions of employment have been under discussion and known to its employees, it is difficult to avoid the conclusion that it was a matter of genuine concern to the respondent.
In those circumstances, it is much more likely that in effecting the redundancies, the employer was giving effect to its desire to reduce its outgoings, than seeking to punish these particular employees because they were insisting upon the terms of the enterprise agreement. For that reason, I consider that the prospects of success in these proceedings are relatively low.
Section 50 provides that a person must not contravene a term of an enterprise agreement. The applicant points to cll 24 and 25 of the enterprise agreement, which deal with redundancy. It is said, first, that there has not been what is said to be a necessary exhaustion of the opportunities to effect voluntary, rather than mandatory redundancies. It is also said that pursuant to clause 25(b), there was an obligation on the employer to consider the identification of persons for redundancy in consultation with a nominated employee representative, although no mechanism seems to be provided for such nomination.
Even if these alleged breaches are made out, they are quite unlikely to lead to the conclusion that the retrenched workers should be reinstated. More particularly, Mr Wright’s affidavit demonstrates that a quite lengthy period of consultation occurred prior to the identification of these workers and further, that significant attempts were made to identify the opportunities for voluntary redundancy. In the end, there would have been a question as to whether a particular voluntary redundancy was acceptable to the employer.
In the circumstances, I am not satisfied that the proceedings enjoy sufficient prospects of success to justify the grant of interlocutory relief. In so saying, I take into account the questions relating to balance of convenience to which I have referred. In those circumstances, the interlocutory application will be dismissed.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 17 April 2014
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