Shyshko v Minos Structural Engineering Pty Ltd

Case [2025] FedCFamC2G 912

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Shyshko v Minos Structural Engineering Pty Ltd [2025] FedCFamC2G 912

File number: MLG 480 of 2025
Judgment of: JUDGE GOSTENCNIK
Date of judgment: 13 June 2025
Catchwords: PRACTICE AND PROCEDURE – application for interlocutory injunction to restrain first respondent from unlawfully terminating the applicant from his employment – strength of prima facie case – balance of convenience – nature and terms of the applicant’s employment in dispute – substantial dispute about the status quo – applicant led no evidence about the nature of his employment with the first respondent – no sufficient prospects of success to warrant the preservation of the status quo – application for interlocutory relief dismissed
Legislation:

Fair Work Act 2009 (Cth) ss 15A, 116B, 125, 340, 345, 361(1), 361(2), 536(3), sch 1, cls 102, 102(3)

Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth)

Australian Consumer Law ss 4, 18, 31
Cases cited:

Australian Broadcasting Corporation v O’Neill [2006] HCA 46, 227 CLR 57

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers’ Union (AMWU) v McCain Foods (Aust) Pty Ltd [2012] FCA 1126

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, 248 CLR 500

Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance CoalOperations Pty Ltd [2018] FCA 1590

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563

Construction, Forestry, Mining and Energy Union v Downer EDI Engineering Power Pty Ltd [2012] FCA 661

Construction, Forestry, Mining and Energy Union v Eco Recyclers Pty Ltd [2013] FCA 24

Police Federation of Australia v Nixon [2008] FCA 467, 168 FCR 340

Quinn v Overland [2010] FCA 799
Division: Division 2 General Federal Law
Number of paragraphs: 29
Date of last submission/s: 13 May 2025
Date of hearing: 2 June 2025
Place: Melbourne
Counsel for the Applicant: Mr S Dany
Solicitors for the Applicant: Boris Pogoriller Solicitor
Counsel for the Respondents: Dr N Stojanova
Solicitors for the Respondents: Gadens

ORDERS

MLG 480 of 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

OLEKSANDR SHYSHKO

Applicant
AND:

MINOS STRUCTURAL ENGINEERING PTY LTD (ACN 007 010 095)

First Respondent

MINOS PATERAKIS

Second Respondent

ORDER MADE BY:

JUDGE GOSTENCNIK

DATE OF ORDER:

13 JUNE 2025

THE COURT ORDERS THAT:

1.The applicant’s application in a proceeding filed on 14 April 2025 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Gostencnik

INTRODUCTION

  1. The applicant commenced a proceeding in this Court…

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Shyshko v Minos Structural Engineering Pty Ltd [2025] FedCFamC2G 912
Case
[2025] FedCFamC2G 912
Decision Date

CaseChat Overview and Summary

In the matter of Shyshko v Minos Structural Engineering Pty Ltd, the applicant, an employee of the first respondent, sought an interlocutory injunction to restrain the first respondent from terminating his employment. The nature of the applicant’s employment and its subsequent termination were central to the dispute. The first respondent, a structural steel business, and the second respondent, its managing director, contested the applicant's claims regarding the terms of his employment and the basis for his termination. The applicant alleged he was offered ongoing full-time employment with specific terms, whereas the respondents claimed he was engaged as a casual employee. The central issue at the trial was to determine the proper characterization of the applicant's employment and the terms underpinning that relationship.

The legal issues before the court included whether the applicant had established a prima facie case for interlocutory relief, and whether the balance of convenience favoured granting the injunction. The applicant needed to demonstrate a sufficient likelihood of success to justify preserving the status quo until trial. Additionally, the court had to weigh the inconvenience or injury the applicant would suffer if relief were refused against the injury the respondents would suffer if relief were granted. The applicant led no evidence about the nature of his employment with the first respondent, and there was a substantial dispute about the status quo. Furthermore, the claim for interlocutory relief was made almost two months after the substantive proceeding commenced, and the orders sought bore little relationship to most of the applicant’s pleaded case.

The court found that the applicant had not established a prima facie case for interlocutory relief. The applicant’s delay in bringing the claim and the lack of sufficient evidence regarding the nature of his employment with the first respondent undermined his prospects of success. The inconvenience to the respondents if the relief were granted outweighed the inconvenience to the applicant if it were not. Consequently, the application for interlocutory relief was dismissed. The court held that the circumstances did not justify preserving the status quo until trial, and the balance of convenience weighed heavily against the grant of such relief.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons explained below, the application for interlocutory orders will be dismissed. BACKGROUND The first respondent operates a structural steel business in the steel fabrication industry. Its business is largely geared to government infrastructure projects. The second respondent is the first respondent’s managing director. The applicant is an employee of the first respondent, but the nature of that employment is in dispute. The applicant has been engaged by the first respondent since September 2022. Initially the applicant was engaged through Talent Blue Pty Ltd, a labour hire company. As a casual employee of Talent Blue, the applicant was assigned to work in the first respondent’s business located in Thomastown in the state of Victoria. The applicant continued in that engagement until around March or April 2023. Between around June 2023 and around June 2024, the first respondent purported to engage the applicant as an independent contractor. The applicant was initially paid at an hourly rate of $50.00 inclusive of GST and from around February 2024, the applicant was paid an hourly rate of $50.00 plus GST. The applicant rendered weekly invoices to the first respondent purportedly for services described as no more than “subcontractor payment for period week ending …” followed by the relevant date, recording the price (per hour) and the total sum of the invoice. Since around June or July of 2024, the applicant has been engaged by the first respondent as an employee, but the circumstances and nature of the employment is in dispute. In short compass, the respondents say the applicant was offered employment on a casual basis as an unqualified welder commencing on 1 July 2024, that he accepted that offer, that he commenced the casual employment on 1 July 2024 and was paid an hourly rate of $40.00. The applicant by his points of claim alleges he was given an offer of on-going full-time employment as a boilermaker, which he accepted on terms including standard weekly hours of work of 40, a rate of pay of $50.00 per hour and 11.5% superannuation employer contributions. According to the respondents, there is an absence of written material specifying the employment relationship into which the applicant and the first respondent entered or about the terms of the employment contract which underpins the relationship, though there are some collateral documents on which the respondents will at trial seek to rely to make good their contentions about the proper characterisation of the applicant’s employment. The applicant alleges that the agreement to employ him and the terms pertaining to that employment were partly oral, partly written and partly to be implied. To the extent the agreement was in writing, the applicant alleges it is constituted by that which he describes in his points of claim as an “employment agreement document executed by the parties in June 2024” the only copy of which was retained by the second respondent. As should be evident, a central issue that will require determination at trial is the proper characterisation of the applicant’s employment, including whether he is a casual or full-time employee of the first respondent and whether the job into which he is employed is as a boilermaker or unqualified welder.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondents contend the applicant was engaged as a casual employee and that the reduction in the applicant’s working hours is due to a downturn in work in the first respondent’s business which has affected its entire workforce and resulted in reduced working hours for workers. The first respondent argues that its treatment of the applicant as a casual employee – who it says is engaged for varying levels of work depending on workflow in the business – is consistent with the first respondent’s working hours practices in relation to other workers and is not exclusive to the applicant.CONSIDERATION The principles relevant to determining an application for interlocutory relief of this kind are not contentious. The Court’s main inquiries will be to consider whether the applicant has made out a prima facie case. That is, whether, if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be entitled to relief. And whether the balance of convenience favours the granting of the interlocutory relief sought. In other words, whether the inconvenience or injury which the applicant would be likely to suffer if interlocutory relief were refused outweighs or is outweighed by the injury which the respondent would suffer if the relief were granted: Australian Broadcasting Corporation v O’Neill [2006] HCA 46, 227 CLR 57 at [19], [65]; Quinn v Overland [2010] FCA 799 at [45]. As Bromberg J pointed out in Quinn at [46], the prima facie case requirement does not mean that the applicant must show it is more probable than not that he will succeed at trial. It will be enough for the applicant to demonstrate a sufficient likelihood of success to justify in the circumstances preserving the status quo until the trial. How strong the probability needs to be will depend on the nature of the rights asserted and the practical consequences likely to flow from the order the applicant seeks. In that context, there is no objection to the use of the phrase “serious question” to convey the strength of the probability: see also O’Neill at [65]–[72]. Most of the focus of the affidavit material before the Court is on the alteration to the applicant’s working hours in 2025 and the reasons for that alteration. This is said to have occurred because the applicant exercised the workplace rights identified, specifically those relating to the FWC proceeding and the proceeding in this Court. The claim for interlocutory relief was not made at the time the applicant commenced the substantive proceeding but was made almost two months later. This was after the date since which the applicant says he has not performed work for the first respondent (24 March 2025) and followed the applicant’s meeting with the second respondent on or around 31 March 2025. It may be accepted therefore, that so much of the applicant’s claims as concern the alleged failure to give the applicant the Fair Work Information Statement, the superannuation related contraventions, payslip related contraventions and indeed most of the other contraventions alleged in the originating application are not of a kind as would have warranted applying for the preservation of the status quo by interlocutory injunction. This is because damages or compensation would be an entirely adequate remedy for the applicant in relation to those claims and the inconvenience which the applicant may suffer if the orders sought were refused would likely be outweighed by the inconvenience which the respondents will suffer if the orders were granted. Moreover, the subject matter of the litigation will not be affected if injunctive relief is not granted and the orders sought bear little relationship to most of the applicant’s pleaded case. Thus, even if a prima facie case in respect of these claims were established, I would not grant injunctive relief because the circumstances do not justify preserving the status quo until trial, and as just noted, the balance of convenience would likely weigh heavily against the grant of such relief. A further matter that is relevant in denying interlocutory relief based on the claims as presently pleaded is the delay in bringing the claim for interlocutory relief. The claim for interlocutory relief was, as already noted, brought almost two months after the substantive proceeding was commenced.