Haeusler v Australian Capital Territory

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FEDERAL COURT OF AUSTRALIA

Haeusler v Australian Capital Territory [2023] FCA 1304

File number(s): ACD 58 of 2023
Judgment of: WIGNEY J
Date of judgment: 20 October 2023
Date of publication of reasons: 27 October 2023
Catchwords:

PRACTICE AND PROCEDURE – application by employees and union for interlocutory injunction restraining the employer from issuing work orders under a contract with an independent contractor unless and until it complies with provisions in an enterprise agreement concerning consultation and the taking of steps to ensure that employees of the contractor receive equivalent pay and conditions – consideration of principles applicable to grant of interlocutory injunctions – whether serious question to be tried – balance of convenience in respect of grant of interlocutory injunction – claim for interlocutory injunction dismissed on the basis that the balance of convenience did not favour the grant of the injunction sought

INDUSTRIAL LAW – construction of enterprise agreement – whether appropriate in the circumstances to resolve the constructional issue at interlocutory stage – where constructional issue is to be determined on a final basis in the near future by another judge in related proceedings  

COSTS – whether applicants should be ordered to pay costs under sub-s 570(2) of the Fair Work Act 2009 (Cth) – whether the claim for interlocutory relief was vexatious or without reasonable cause – no order as to costs

Legislation:

Fair Work Act 2009 (Cth) ss 50, 545, 570(2)(a)-(b)

Federal Court of Australia Act 1976 (Cth) s 23

Cases cited:

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63

Australian Federation of Air Pilots v HNZ Australia [2015] FCA 755

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1986] HCA 58

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (2010) 268 ALR 514; [2010] FCA 591

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FCA 1431

Pakenham Upper Fruit Company Limited v Crosby (1924) 35 CLR 386; [1924] HCA 55

Ridd v James Cook University (2021) 274 CLR 495; [2021] HCA 32

Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156

Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595
Division: Fair Work Division
Registry: Australian Capital Territory
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 87
Date of hearing: 17 October 2023
Counsel for the Applicants: J Agius SC and P Boncardo
Solicitor for the Applicants: Hall Payne Lawyers
Counsel for the Respondent: A Berger KC and BD Kaplan
Solicitor for the Respondent: ACT Government Solicitor

ORDERS

ACD 58 of 2023
BETWEEN:

KEL HAEUSLER

First Applicant

STEVE KUCZERKA

Second Applicant

ANTONIO MAGNO (and others named in the Schedule)

Third Applicant
AND:

AUSTRALIAN CAPITAL TERRITORY

Respondent

ORDER MADE…

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Details
Case
[2023] FCA 1304
Decision Date

CaseChat Overview and Summary

The applicants, employees of the Australian Capital Territory (ACT) and their union, sought an interlocutory injunction to prevent the ACT from issuing work orders under a contract with an independent contractor unless it complied with provisions in an enterprise agreement concerning consultation and ensuring equivalent pay and conditions for the contractor’s employees. The application was heard in the Fair Work Commission. The central legal issues revolved around whether there was a serious question to be tried, the balance of convenience for granting the injunction, and whether the applicants should be ordered to pay costs under section 570(2) of the Fair Work Act 2009 (Cth).

The Commission considered the principles applicable to the grant of interlocutory injunctions and found that while there was a serious case to be tried, the balance of convenience did not favour the grant of the injunction sought. The Commission was not persuaded that the balance of convenience favoured making an injunction in the terms sought by the employees and the union. The Commission also noted that the constructional issue regarding the enterprise agreement was to be determined on a final basis in the near future by another judge in related proceedings, thus it was inappropriate to resolve the constructional issue at the interlocutory stage.

The Commission dismissed the claim for interlocutory relief, noting that the applicants' actions were not unreasonable, vexatious, or without reasonable cause. Consequently, the Commission dismissed the ACT's application for costs. The Commission concluded that there would be no order as to costs in respect of the claim for interlocutory relief.

ORDERS:

1. The claim for interlocutory relief included in the originating application filed on 6 October 2023 be dismissed.
2. There be no order as to costs in respect of the claim for interlocutory relief included in the originating application filed on 6 October 2023.

Orders

Orders of the court

1. The claim for interlocutory relief included in the originating application filed on 6 October 2023 be dismissed.

2. There be no order as to costs in respect of the claim for interlocutory relief included in the originating application filed on 6 October 2023.

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

For the reasons that follow, I do not propose to grant the interlocutory relief sought by the employees and the union. While I am satisfied that there is a serious case to be tried in respect of the claim that the Territory contravened the 2023 EA and s 50 of the Fair Work Act, I am not persuaded that the balance of convenience favours the making of an injunction in the terms sought by the employees and the union. Evidence and factual findings The parties relied on voluminous affidavit and documentary evidence. There was no objection to any of the evidence. That was notwithstanding the fact that the relevance and admissibility of at least some of the affidavit evidence was fairly dubious. There was also no cross-examination of the deponents to the affidavits. That was notwithstanding the fact that there appeared to be some disputed factual issues and some inconsistencies, if not conflicts, between the evidence relied on by the employees and the union and the evidence relied on by the Territory. I am not being critical of the parties for taking that approach to the evidence. It would appear that the parties, quite sensibly, took the view that the contestable parts of the affidavits and some of the disputed factual issues did not materially bear on the question whether the interlocutory relief should be granted. That said, it left me in the somewhat unenviable position of wading through voluminous affidavit and documentary evidence with a view to resolving untested evidence concerning disputed factual issues. In the circumstances, I will only endeavour to address the factual disputes that appear to be material or were addressed in the parties’ submissions. I also make it clear that I have not closely considered all of the voluminous documentary evidence. As I advised the parties at the hearing, I propose only to address the documentary evidence to which I was taken or that was the subject of the parties’ submissions. As already indicated, the employees are all employed by the Territory as general service officers or road workers. The work that they carried out would appear to mostly involve filling potholes and fixing trip hazards on footpaths and roads, clearing up after car accidents and removing trees and other hazards from roads and footpaths. It would also appear, however, that the employees occasionally performed some traffic control work. Traffic control work involved managing traffic, using a “stop” or “slow” sign, while road works were carried out or, it appears, when major accidents caused traffic issues. If the employees wanted to perform such work, they could apply to be on the call out or traffic control roster. While some traffic control work was carried out by workers employed by the Territory, the Territory had, since about 2004, also engaged external contractors to perform that and other more involved and complex traffic management services. During 2022, the Territory had a contract with Lack Group Constructions Pty Ltd which included the provision of such services. That contract expired on 30 June 2023.

Decision

Reasons for decision

I should also, for completeness, add that I am not satisfied that the fact that the Territory initially submitted that the matter was more appropriately dealt with at an early final hearing before Shariff J provides any basis for concluding that the employees and the union engaged in any unreasonable act or omission which caused the Territory to incur costs: see section 570(2)(b) of the Fair Work Act. In short, in my view, while the employees and the union failed in their interlocutory application, it was by no unreasonable for them to pursue that application, nor could it seriously be said to be vexatious or an application without reasonable cause. Accordingly, the Territory’s application for costs is dismissed.Conclusion and disposition It follows that the application by the employees and the union for interlocutory relief in the form of an injunction will be dismissed. There will be no order as to costs.

Ratio Decidendi

Legal Principle Established

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