Construction, Forestry, Mining and Energy Union v Peabody Energy Australia Coal Pty Ltd
[2014] FCA 394
FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v Peabody Energy Australia Coal Pty Ltd [2014] FCA 394
Citation: Construction, Forestry, Mining and Energy Union v Peabody Energy Australia Coal Pty Ltd [2014] FCA 394 Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v PEABODY ENERGY AUSTRALIA COAL PTY LTD File number: QUD 112 of 2014 Judge: RANGIAH J Date of judgment: 10 April 2014 Catchwords: INDUSTRIAL LAW – where applicant union seeks interim injunction reinstating a member to his former employment – whether applicant can demonstrate prima facie case – whether balance of convenience favours granting injunction Legislation: Fair Work Act 2009 (Cth) ss 351(1) and 351(2)
Coal Mining Safety and Health Act 1999 (Qld) ss 29, 28(3), 41 and 42
Coal Mining Health and Safety Regulations 2001 (Qld) s 45(1)Cases cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 applied
CEPU v Blue Star Pacific Proprietary Limited [2009] FCA 726 appliedDate of hearing: 10 April 2014 Place: Brisbane Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: Mr B Docking Solicitor for the Applicant: Hall Payne Lawyers Counsel for the Respondent: Mr C J Murdoch Solicitor for the Respondent: Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 112 of 2014
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ApplicantAND: PEABODY ENERGY AUSTRALIA COAL PTY LTD
Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
10 APRIL 2014
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
UPON Vernon John Kemp undertaking to the Court that he will:
1.monitor and manage his medical condition by:
(a)attending upon Dr Parker at least once every three months;
(b)conferring with Dr Cracknell at least once every three months; and
(c)attending upon Ms Fiona Lynch, Dietician, at least once every three months;
2.check blood sugar levels by way of his glucometer:
(a)at the start of shift;
(b)prior to any meals taken whilst on shift;
(c)every 3 hours whilst working;
(d)prior to operating forklift; and
(e)prior to working at heights;
3.carry his glucometer at all times whilst on shift;
4.carry a source of glucose and carbohydrates at all times whilst on shift;
5.treat any symptoms or glucometer readings of low glucose which present whilst he is on shift;
6.keep a diary which will record for each shift the times at which he checks his blood sugar levels and the levels recorded on his glucometer;
7.otherwise comply with all restrictions imposed by the respondent’s Nominated Medical Adviser.
AND UPON the applicant giving the usual undertaking as to damages.
THE COURT ORDERS THAT:
1.An order that until the hearing and determination of this application, or further order, the respondent reinstate Vernon Kemp to his employment with the respondent in the position of Warehouse Officer with no loss and with continuity of service being maintained for all purposes on and from 3 March 2014 on the conditions that:
(a)The duties to be performed by Mr Kemp in his role as a Warehouse Officer are to be determined, in good faith, by the respondent taking into account its obligations under the Coal Mining Health and Safety Act 1999 (Qld) and the Coal Mining Health and Safety Regulations 2001 (Qld);
(b)The respondent be permitted to inspect and copy the diary kept by Mr Kemp in accordance with undertaking 6.
2.Mr Kemp repay, within 14 days, to the respondent’s nominated financial institution the amount of $21,739 being the after tax amounts paid to Mr Kemp by the respondent upon the termination of his employment on 3 March 2014.
3.The applicant file and serve a statement of claim by 4.00 pm on 1 May 2014.
4.The respondent file and serve a defence by 4.00 pm on 22 May 2014.
5.The applicant file and serve any reply by 4.00 pm on 29 May 2014.
6.The parties are to exchange lists of any proposed categories of documents for discovery by 4.00 pm on 5 June 2014 and, failing agreement between the parties as to the categories on or before 12 June 2014, either party has liberty to apply in respect of discovery on or before 19 June 2014.
7.The applicant is to file and serve any additional affidavits containing the evidence in chief of each witness, including any experts, it proposes to call at the hearing of the proceeding by 4.00 pm on 12 June 2014.
8.The respondent is to file and serve any additional affidavits containing the evidence in chief of each witness, including any experts, it proposes to call at the hearing of the proceeding by 4.00 pm on 3 July 2014.
9.The applicant is to file and serve any affidavits containing the evidence in reply to the evidence in chief of the witnesses, including any experts, for the respondents by 4.00 pm on 10 July 2014.
10.Each party is to file and serve a list of any objections to affidavit evidence 5 days prior to commencement of the final hearing.
11.Each party is to file and serve a response to the other parties’ list of objections 3 days prior to commencement of the final hearing.
12.The proceeding is listed for final hearing for 3 days commencing on 21 July 2014 at Brisbane.
13.The parties have liberty to apply.
14.Costs of the interlocutory application be reserved.
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 112 of 2014
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ApplicantAND: PEABODY ENERGY AUSTRALIA COAL PTY LTD
Respondent
JUDGE:
RANGIAH J
DATE:
10 APRIL 2014
PLACE:
BRISBANE
REASONS FOR JUDGMENT
The applicant seeks an interim injunction requiring the respondent to reinstate Vernon Kemp to his former employment as a warehouse officer at the North Goonyella coal mine.
In the principal proceeding, the applicant alleges that the respondent contravened s 351(1) of the Fair Work Act 2009 (Cth) by taking adverse action against Mr Kemp, namely, terminating his employment because of his physical disability, Type 1 diabetes.
Section 351 of the Fair Work Act provides relevantly:
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, subsection (1) does not apply to action that is:
(a)not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b)taken because of the inherent requirements of the particular position concerned;
The respondent denies any contravention of s 351(1). It alleges that it terminated Mr Kemp’s employment because he failed to comply with management plans put in place by doctors to control his risk of suffering hypoglycaemic episodes and because such management plans were, in any event, ineffective. It submits that these reasons do not amount to termination “because of” Mr Kemp’s diabetes. It also claims that the termination falls within two of the exceptions set out in s 351(2): that the action is not unlawful under relevant anti-discrimination laws; and because it was taken because of inherent requirements of the particular position concerned.
The parties are agreed that the principles in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 82 apply to the present application. The applicant must satisfy the Court that:
(a)a prima facie case in the sense of a “sufficiently likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”; and
(b)that the balance of convenience favours the applicant.
In CEPU v Blue Star Pacific Proprietary Limited [2009] FCA 726 at [21], Greenwood J summarised the applicable principles as follows:
The organising principles governing the exercise of the discretion in granting or withholding the grant of an interlocutory injunction are well understood and clearly explained by the High Court in Australian Broadcasting Corporation v O’Neill (2006) 225 CLR 57 per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65] to [72] as their Honours emphasise the principles established in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. It is therefore necessary for the applicants to show a sufficient likelihood of success in the principal proceeding at trial to justify, in the circumstances, the preservation of the status quo pending the trial. That is the sense in which the applicants must demonstrate whether a prima facie case is made out. In analysing whether the applicants have demonstrated a sufficient likelihood of success to justify the preservation of the status quo pending trial, the Court will examine the strength of the prima facie case and whether, if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be held entitled to relief. The strength of the probability of success depends in part upon the nature of the rights asserted by the applicants and the practical consequences likely to flow from the order the applicants seek. A sufficient likelihood of success in this sense might properly also be described as whether the applicants have shown a serious question to be tried. The applicants must also demonstrate that the injury the individual applicants would be likely to suffer if an interlocutory injunction is not granted, outweighs the injury the defendant would suffer if the injunction is granted. Further, the applicants must show that damages will not be an adequate remedy. The question of balance of convenience and the adequacy of damages are in turn influenced by the strength of the prima facie case and the nature of the rights asserted by the individual applicants.
The respondent emphasises the requirement that the applicant must show that damages are not an adequate remedy.
In this case, the status quo is that Mr Kemp is not employed by the respondent. The applicant seeks a mandatory interim injunction that will disturb the status quo by returning Mr Kemp to his former employment. The applicant must therefore demonstrate a sufficient likelihood of success to justify the disturbance of the status quo pending the trial.
I accept that there is a prima facie case that the respondent has contravened s 351(1). The respondent’s concession that one of the reasons for the termination was that the plan to manage Mr Kemp’s diabetes was ineffective suggests that the termination was, in part, “because of… physical… disability”. The respondent’s argument seeks to distinguish between termination because of physical disability and termination because of the safety risk stemming from the risk of hypoglycaemic episodes. Against this, it is arguable that the distinction is illusory or, at least, that it is a fine one.
At trial, the onus will be on the respondent to demonstrate the existence of the exceptions in s 351(2).
There is no doubt that the respondent and its senior site executives have obligations for the safety of its employees pursuant to s 41 and s 42 of the Coal Mining Safety and Health Act 1999 (Qld). These obligations include ensuring that the risk to employees is at an acceptable level. The level of risk from coal mining operations is, pursuant to s 29, at an acceptable level if it is within acceptable limits and as low as reasonably achievable. The health and safety obligations are not absolute and are discharged if the operator and its senior site executives take reasonable precautions and exercise proper diligence to ensure that the obligation is discharged: s 38(3).
It is apparent that the respondent considered that the risk posed to Mr Kemp and other employees by his diabetes was not an acceptable level of risk. This opinion is not determinative because the decision as to whether his employment was lawfully terminated is ultimately one for the Court. Nevertheless, the employer’s view must be given substantial weight.
For present purposes, while I am satisfied that the applicant has established a prima facie case that s 351(1) has been contravened, I am unable to reach any further conclusion as to the strength or weakness of the case.
It is next necessary to consider the balance of convenience.
The crucial factor is the level of risk that Mr Kemp may experience further hypoglycaemic episodes and create a risk of injury to himself and other workers. The respondent pointed to the fact that Mr Kemp has had some eight hypoglycaemic episodes between August 2011 and July 2013 while he was at work. In July 2013, he suffered a loss of consciousness and he has not returned to work between that date and the termination of his employment on 3 March 2014. These hypoglycaemic episodes occurred despite doctors certifying that he was fit for his employment subject to complying with certain requirements for the monitoring and treatment of his diabetes. There is also some suggestion that Mr Kemp did not fully comply with those medical requirements at times. I consider that the risk to health and safety posed by the risk of further hypoglycaemic episodes should be given significant weight in considering the balance of convenience.
However, the only medical evidence placed before me suggests that Mr Kemp is fit to resume his former work, subject to certain conditions which are now considered appropriate. There is a medical certificate issued by Dr David Parker on 21 January 2014 stating that Mr Kemp:
xIs fit to undertake the proposed / current position subject to the following restriction(s) (if necessary, outline in management program)
Requires ongoing monitoring and management of medical condition
Must check glucose at start of shift and every 3 hours whilst working
Must carry source of glucose at all times
Must check blood sugar prior to operating forkliftDr Parker has been appointed by the respondent as a “nominated medical advisor” pursuant to s 45(1) of the Coal Mining Health and Safety Regulations 2001 (Qld) to carry out, supervise and report on health and safety assessments for the respondent’s coal mining workers. Dr Parker took into account the views of Mr Kemp’s treating specialist, Dr Grant Cracknell, before issuing his certificate. In two more recent reports dated 17 March 2014 and 28 March 2014, Dr Cracknell confirms that Mr Kemp’s risk would be minimised (although, inferentially, not eliminated) by compliance with certain conditions. No medical evidence has been placed before me contradicting the opinions of Dr Parker and Dr Cracknell.
Mr Kemp is willing to undertake to the Court that he will comply with the conditions stipulated by Dr Parker, as well as keep a diary recording his compliance with the conditions.
In these circumstances, notwithstanding the risks involved, I consider that the balance of convenience favours an injunction requiring the respondent to re-employ Mr Kemp until the trial.
I wish to make it clear that the employment relationship between the respondent and Mr Kemp is ultimately one for them. That relationship requires the respondent to consider its own statutory obligations and act accordingly. This will require it to consider matters including the duties that it considers are able to be safely performed by Mr Kemp. However, I would expect that in making any such decisions the respondent will act in good faith.
I take into account that Mr Kemp will suffer considerable hardship if he is not re-employed pending trial. Apart from during his hypoglycaemic episodes, there is no suggestion that he has not competently carried out his work. Mr Kemp and his wife have very significant medical expenses, a mortgage and another loan that they will not be able to service without his income. I do not consider that the losses – emotional, physical and financial – that they will suffer as a result can be adequately compensated by an award of compensation.
Mr Kemp was employed by the respondent for some nine years before his termination. He has not been able to obtain other work. It is necessary to also take into account the frustration and emotional and psychological aspects of Mr Kemp’s inability to work.
There will be some delay before the matter can proceed to trial. I have set the trial down for hearing over three days, commencing on 21 July 2014. There may be some further delay before a judgment is given.
I consider that, in all the circumstances, the balance of convenience favours the re-employment of Mr Kemp by the respondent, subject to the undertakings and conditions set out in the order that I propose to make, pending the completion of the proceeding.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 17 April 2014
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