FEDERAL COURT OF AUSTRALIA
Cox v DP World Brisbane Limited [2021] FCA 1335
File number: QUD 365 of 2021 Judgment of: LOGAN J Date of judgment: 11 November 2021 Catchwords: INDUSTRIAL LAW – interlocutory application – where respondent employer required all employees to submit proof of their vaccination against COVID-19 – where applicants unwilling to comply with vaccine mandate – where respondent’s “show cause letter” caused to be sent after applicants raised their unwillingness to comply in a letter – whether casual link between the “show cause letter” and exercise of workplace right – where all applicants bar one entitled to termination benefits –where closely proximate trial date for substantive hearing offered by the Court – where public interest in minimising risk of disruptions to supply chains – whether damages an adequate remedy
PRACTICE AND PROCEDURE – application for interlocutory injunction – whether prima facie case that respondent had contravened s 340(1) or alternatively s 50 of the Fair Work Act 2009 (Cth), or alternatively committed breach of contract – whether balance of convenience favours the grant of injunctive relief – application for interlocutory relief dismissed
Legislation: Evidence Act 1995 (Cth) s 144
Fair Work Act 2009 (Cth) ss 50, 340, 341, 361, 545
Federal Court of Australia Act 1976 (Cth) s 23
Work Health and Safety Act2011 (Qld)
Cases cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Bouzourou v The Ottomon Bank [1930] AC 271
Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd (2009) 184 IR 333
McLean v Tedman (1984) 155 CLR 306
Ottoman Bank v Chakarian [1930] AC 277
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
QNurses First Inc v Monash Health [2021] FCA 1372
Sabapathy v Jetstar Airways [2021] FCAFC 25
Turner v Mason (1845) 14 M&W 112
Division: Fair Work Division Registry: Queensland National Practice Area: Employment and Industrial Relations Number of paragraphs: 101 Date of hearing: 11 November 2021 Counsel for the Applicants: Mr JB Sweeney Solicitor for the Applicants: Green and Associates Counsel for the Respondent: Mr J Darams with Mr M Watts Solicitor for the Respondent: Seyfarth Shaw Australia ORDERS
QUD 365 of 2021 BETWEEN: SHAUN COX
First Applicant
ZOLTAN NEMETH
Second Applicant
JAMIE EDWARDS (and others named in the Schedule)
Third Applicant
AND: DP WORLD BRISBANE LIMITED ACN 130 876 701
Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
11 NOVEMBER 2021
Upon the respondent undertaking that until close of business on 31 December 2021 or earlier
order, the respondent will not terminate any applicants’ employment on either of the following
grounds:
a. the applicant has not provided evidence of having been vaccinated against Covid 19;
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- AGLC
- Cox v DP World Brisbane Limited [2021] FCA 1335
- Case
- [2021] FCA 1335
- Decision Date
CaseChat Overview and Summary
The court found that while the applicants may have a prima facie case, the evidence did not establish a casual link between the respondent’s “show cause letter” and the exercise of workplace rights. The court considered the unpredictability of the shipping schedule and labour needs, and the risk of operational disruption to the Port of Brisbane. The court found that the balance of convenience did not favour the grant of injunctive relief, as the potential harm to the respondent outweighed the potential harm to the applicants. The court also found that damages would be an adequate remedy, and that the public interest in minimising risk of disruptions to supply chains outweighed the applicants’ right to be free from unjustifiable termination.
The interlocutory injunction application was dismissed. The applicants were ordered to file and serve an amended Statement of Claim, Defence, Reply, and affidavit material. The matter was set down for hearing with a duration of two days. Costs were reserved.
Orders
Orders of the court
1. The interlocutory injunction application be dismissed.
2. By 4:30 pm (AEST) on 15 November 2021, the applicants file and serve an amended Statement of Claim.
3. By 4:30 pm (AEST) on 18 November 2021, the respondent file and serve a Defence.
4. By 4:30 pm (AEST) on 19 November 2021, the applicants file and serve any Reply.
5. By 4:30 pm (AEST) on 30 November 2021, the applicants file and serve an affidavit of each witness it will call at trial.
6. By 12:00 pm (AEST) on 13 December 2021, the respondent file and serve affidavits of each witness it will call at trial.
7. By 4:30 pm (AEST) on 16 December 2021, the applicants file and serve any affidavit material in reply.
8. The matter be set down for hearing with a duration of two days, commencing at 10:15 am (AEST) on 20 and 21 December 2021.
9. Liberty to apply.
10. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
As a result, while employees may see others from their own roster panel more frequently, they will also mix with the broader group of employees through VSEs and supplementaries working across shifts as needed, and from themselves or others working overtime. The unpredictability of the shipping schedule and labour needs means it is not feasible to avoid this for long, if at all.Operational continuity The Port of Brisbane (Fisherman Islands) is the only container port in Queensland. DP World Brisbane is a common entry port for vessels making a first port of call at Australia. Of the 10 services that berth at the Brisbane Terminal, 6 are making their first call in Australia. DP World Brisbane operates one of three container stevedoring terminals at the Port of Brisbane. The others are operated by Patrick Terminals and Hutchison Ports. Between them, these three terminals have nine container berths. Of those berths, the Brisbane Terminal includes four. As such, if the Brisbane Terminal is unable to operate fully or at all, this affects nearly half of Queensland’s container stevedoring capacity.COVID-19 Vaccination Mandate and Risk Assessment From around March 2020, DP World Australia management, of which Mr Hanley is part of, has been discussing the safe management of COVID-19 in the workplace to keep employees safe and the terminals operating. Each week, the DP World Australia Management team meets on Mondays (to discuss Work, Health and Safety) and Thursdays (to discuss terminal operations). From Mr Hanley’s experience attending these meetings, the topic of COVID-19 and safe management of COVID-19 arises frequently. On or around 15 September 2021, Mr Hanley became aware of three positive cases of COVID-19 at the Port Botany terminal. Mr Hanley was informed by Scott Eadie (General Manager - Operations, DP World Sydney Ltd) and Andrew Adam (CEO, DP World Australia Ltd) that approximately 35 employees were required to self-isolate for 14 days in accordance with NSW Health directions. Mr Hanley is also aware that a further 57 employees were sent home from work because they were casual contacts. These employees were required to produce a negative COVID-19 test result before returning to work. Mr Hanley is aware that in mid-September, Victoria International Container Terminal had a COVID-19 outbreak and was required to close operations for one day for cleaning. Mr Hanley is also aware that in early October, there was a COVID-19 outbreak at the Patrick Terminal in Melbourne. As a result, Patrick was required to operate with 20 per cent reduced capacity for approximately a week following the outbreak. As a result of the Port Botany COVID-19 outbreak, it became clear to the DP World Australia Management team that similar outbreaks in the future at Port Botany and at other terminals would create a serious community transmission risk and disrupt DP World's continuous operations. Mr Hanley reasoned, and Mr Hanley believes other members of the team also believed, that logically if a similar outbreak were to occur at DP World Brisbane, Queensland Health would take a similar, if not more stringent approach, to the management of the outbreak as that taken by NSW Health.