Rojas v Esselte Australia Pty Limited

FEDERAL COURT OF AUSTRALIA

Rojas v Esselte Australia Pty Limited [2007] FCA 1506

INDUSTRIAL LAW – application for interim relief – where applicant a union delegate dismissed by respondent for conduct during strike – whether serious case to be tried as to whether applicant was terminated for being a union delegate or for engaging in protected industrial action – balance of convenience and relevance of income derived from second job

DAVID ROJAS v ESSELTE AUSTRALIA PTY LIMITED (ACN 002 407 936)
NSD 1875 OF 2007

MOORE J
27 SEPTEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1875 OF 2007

BETWEEN:	DAVID ROJAS Applicant
AND:	ESSELTE AUSTRALIA PTY LIMITED (ACN 002 407 936) Respondent

JUDGE:	MOORE J
DATE OF ORDER:	27 SEPTEMBER 2007
WHERE MADE:	SYDNEY

UPON THE APPLICANT undertaking not to harass, intimidate or otherwise act aggressively towards Vijendre K Sharma,  Michael Simmonds, Barry Starr and Justin Reidy;

AND UPON the National Union of Workers giving the usual undertaking as to damages:

THE COURT ORDERS THAT:

1.The applicant be reinstated to the position he formerly held with the respondent until further order or until determination of these proceedings;

2.The matter be listed for directions at 9.30 am on 30 October 2007.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1875 OF 2007

BETWEEN:	DAVID ROJAS Applicant
AND:	ESSELTE AUSTRALIA PTY LIMITED (ACN 002 407 936) Respondent

JUDGE:	MOORE J
DATE:	27 SEPTEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for interim relief under s 838 of the Workplace Relations Act 1996 (Cth) ("WRA") and s 23 of the Federal Court of Australia Act 1976 (Cth). The applicable principles for determining whether the relief sought should be granted, are not in issue. They have recently been restated by a Full Court in The Community and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176 and, in particular, at [14] - [19]. There is no significant dispute about many of the facts and, in any event, it is inappropriate to endeavour to resolve finally factual issues at this stage of the proceedings. While affidavits were read, the evidence was not tested in cross-examination.

2. The essential facts are these.  The applicant commenced employment with the respondent in about 1991.  In about 1998 he became a delegate of the National Union of Workers ("NUW").  He was employed as a storeman and packer at the Minto warehouse of the respondent.  In 2006, the applicant's employment and that of certain others employed by the respondent was covered by a collective agreement.  In early 2006 discussions commenced between the respondent and the NUW about a new collective agreement.  The applicant was involved in those discussions as the delegate representing union members at the warehouse.  In June 2006, the respondent wrote to employees including the applicant about the possibility of being employed on an…