Shyshko v Minos Structural Engineering Pty Ltd

[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 on 17 February 2025 alleging, inter alia, that the first respondent contravened several provisions of the Fair Work Act 2009 (Cth) (Act), including a general protections provision, and that the second respondent was involved in the contraventions. On 14 April 2025, the applicant applied for interlocutory relief and now seeks an order that until the hearing and determination of the applicant’s claim for final relief, the first respondent be restrained from taking any step to unlawfully terminate or to unlawfully suspend the applicant from his employment at the first respondent’s factory at 69 Dalton Road, Thomastown, Victoria. The applicant also seeks an order, pending final determination, requiring the first respondent to offer to the applicant shifts of work at an hourly rate of $40.00 in such quantity and duration so that across each full calendar month the applicant is offered at least 100 hours of work.

2. For the reasons explained below, the application for interlocutory orders will be dismissed.

   BACKGROUND

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. The applicant’s claims the subject of the substantive application before the Court variously seek declarations, damages, compensation and the imposition of pecuniary penalties on the respondents. The claims arise from allegations that: the first respondent breached the terms of the applicant’s employment contract; the respondents contravened ss 4, 18 and 31 of the Australian Consumer Law; the first respondent contravened ss 116B, 125, 340, 345 and 536(3) of the Act, and that the second respondent was knowingly concerned in these contraventions. The applicant has foreshadowed amending the claims to include further allegations of the first respondent contravening s 340 of the Act arising after the applicant had exercised workplace rights, namely, making inquiries in relation to his employment in late 2024, making an application to the Fair Work Commission (FWC) for it to deal with a dispute and later participating in the FWC proceeding in February 2025, and commencing this proceeding in February 2025. The applicant alleges that after he exercised these workplace rights and because he did so, the first respondent took adverse action against him by systematically reducing his hours of work in December 2024 and from January to March 2025. And from 24 March 2025, the first respondent has not allocated any work hours to the applicant. The applicant alleges this was adverse action because the first respondent injured the applicant in his employment and altered the applicant’s position to his prejudice. Although all of this concerns matters which are not presently pleaded, I am content to proceed on the basis that these alleged contraventions will be included in the proceeding by appropriate and timely amendments to the initiating documents.

9. 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

10. 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].

11. 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.

12. 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.

13. In assessing whether interlocutory injunctive relief should issue I will focus therefore, as the parties have done in their affidavit material, on the applicant’s general protections contravention claims said to arise from the reduction of his working hours in 2025 and more particularly since March 2025. In this regard, the applicant says the affidavits on which he relies describe the “new adverse action” the first respondent took against him after, and because the applicant exercised his workplace rights at the FWC and in this proceeding. The applicant says that while the first respondent has denied it has withdrawn all work from the applicant for a prohibited reason, the Court need not resolve the question on a final basis and it is sufficient that the applicant’s affidavit material discloses a prima facie case that the first respondent took adverse action against the applicant for reasons which included that the applicant has exercised the aforementioned workplace rights.

14. The respondents say the applicant has failed to establish sufficient prospects of success to warrant the preservation of the status quo. As already noted, the respondents contend the applicant was engaged as a casual employee, that a downturn in work in the business necessitated a reduction in the applicant’s hours of work, the downturn affected the entire workforce and resulted in reduced working hours for other workers, and its treatment of the applicant as a casual employee is not exclusive to him and is consistent with the practices pertaining to other workers.

15. As earlier noted, whether the applicant was a casual or permanent employee is an issue that will require determination at trial. The applicant’s employment status is central to determining most of the claims the subject of the substantive application and will be relevant also in determining whether the first respondent’s action in reducing the applicant’s working hours was undertaken in contravention of s 340 of the Act. Beyond the pleadings in the applicant’s points of claim, the applicant’s affidavit gives little detail about the circumstances and terms of his engagement. Because the applicant was employed by the first respondent before 26 August 2024, determining whether or not the applicant is a casual employee will likely turn on assessing whether he is a casual employee within the meaning of s 15A of the Act informed by the transitional provision in cl 102 of Sch 1 to the Act. The meaning of a ‘casual employee’ was amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) with effect on 26 August 2024. The applicant was employed before that date. If he was a casual employee of the first respondent within the meaning of s 15A of the Act as in force before 26 August 2024, he is taken to be a casual employee of the first respondent within the meaning of s 15A as amended for the period on or after 26 August 2024: cl 102(3) of Sch 1 to the Act. One consideration will be whether the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work. If it was not then his employment will be ongoing or permanent rather than casual.

16. Whilst the applicant’s points of claim plead that in June 2024 he was offered and accepted full-time employment, his affidavit material does not speak to the engagement or to matters relevant to assessing whether the applicant was full-time as he contends. There is also an absence of any documents showing the nature and terms of the applicant’s engagement in the applicant’s affidavit. Instead, his affidavit focuses on the hours he worked before and after the FWC proceedings. The material about the hours worked is equivocal in the sense that it can be consistent with both permanent and casual employment depending on other considerations. Establishing the terms of the engagement of the applicant will be important for the purposes of assessing whether the reduction in working hours is adverse action.

17. Conversely, the second respondent deposed in his affidavit that the applicant was offered and accepted employment as a casual employee commencing on 1 July 2024 as an unqualified welder. But little is said about there being no firm advance commitment that the work would continue indefinitely with an agreed pattern of work. Indeed, there is nothing in the second respondent’s affidavit about what he discussed with the applicant about hours and patterns of work at the time of engagement. Instead, the second respondent deposes – but in substance submits – the conduct of the applicant in working some variable weekly hours, and of the first respondent in engaging the applicant on variable hours shows a mutual understanding that the applicant was engaged as a casual employee and that he did not have a guaranteed pattern of work. There is also some documentary evidence suggesting the applicant was told in or around November 2024 that his employment was as a casual.

18. It is likely not controversial that the applicant’s participation in the FWC proceeding and the commencement of the proceeding in this Court amounted to an exercise of a workplace right. It is also likely not controversial that a reduction of an employee’s working hours by an employer may amount to adverse action if the alteration disregards or is inconsistent with an employee’s contractual rights or has an adverse affection or a deterioration in the advantages enjoyed by the employee before the hours reduction, in the sense of a prejudicial altering of the position of the employee. The applicant’s affidavit material establishes for present purposes that the applicant commenced and participated in proceedings under the Act and that after he did so, his working hours were reduced by the first respondent, and that since late March 2025, the applicant has not been given any hours of work.

19. The second respondent’s affidavit material discloses some evidence of a reduction in revenue or income between the FYE 30 June 2024 and the YTD May 2025. The revenue decline is said to be because of a reduction in work the first respondent derives from or related to government infrastructure projects. The second respondent deposes that the downturn in revenue and workflow meant that the first respondent needed to reduce costs, including labour costs. Consequently, the first respondent implemented several measures to reduce labour costs, affecting a range of workers, including, but not limited to the applicant.

1. But it will not be a complete answer to the applicant’s claim for the respondents to show at trial that the applicant was a casual employee whose work was dependant on workflow and that the first respondent experienced a downturn in work and revenue which resulted in the applicant’s hours of work being reduced. A proscribed reason for taking adverse action need only be a substantial and operative reason, or reasons including the reason, for the action: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, 248 CLR 500 at [104], and so a proscribed reason need not be the only reason for taking the action. On the material in the second respondent’s affidavit, although the first respondent has reduced the number and frequency of labour hire workers it utilises, it nevertheless appears to have continued using some labour hire workers. Why this is so in preference to offering shifts to the applicant is not explained. And although reversal of the onus of proof provided by s 361(1) of the Act does not apply in cases where interlocutory injunctions are sought (s 361(2)), it is still to be taken into account in determining the strength of the prima facie case when the grant of an interlocutory injunction is being considered: Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2018] FCA 1590 at [17]; Police Federation of Australia v Nixon [2008] FCA 467, 168 FCR 340 at [69]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563 at [63]; Construction, Forestry, Mining and Energy Union v Downer EDI Engineering Power Pty Ltd [2012] FCA 661 at [12]; 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 at [45]; Construction, Forestry, Mining and Energy Union v Eco Recyclers Pty Ltd [2013] FCA 24 at [44].

2. However here, the real weakness in the applicant’s prima facie case argument is that he has not led any evidence about the nature of the employment, or the terms under which he was employed, and he seems to rely solely on the pleading in the points of claim in which he contends he was offered and accepted full-time employment. Putting to one side whether action in reducing the applicant’s hours was taken for a prohibited reason, assessing whether the reduction in hours was adverse action, even on an interlocutory basis, requires an understanding of the nature of the employment. And though the applicant pleads he was a full-time employee, he has led no evidence in support of the interlocutory application from which it might be concluded prima facie that is so. Accordingly, I do not consider the applicant has made out on the evidence a prima facie case and I agree with the respondents, although for different reasons, that the applicant has failed to establish a sufficient prospect of success to warrant the preservation of the status quo.

3. In any event, I also do not consider that the applicant has demonstrated that he is likely to suffer injury for which damages will not be an adequate remedy nor that the balance of convenience favours the grant of injunctive relief in the terms sought or otherwise. My reasons for these conclusions are set out below.

4. First, the applicant’s claim that he would suffer irreparable harm is light on evidence. The applicant’s evidence was that he was the sole breadwinner, and his spouse is currently studying at TAFE. He has two daughters aged 4 years and 12 years. Since his working hours were reduced or eroded to zero in late March 2025, he and his family have exhausted savings and are at risk of losing their rental accommodation, which the applicant submits would cause him direct and irreparable prejudice. The applicant deposed to these circumstances on 11 April 2025. He also deposed that he was trying to find alternative employment but has been offered only short-term temporary assignments. At the time of hearing the interlocutory application, more than 8 weeks had passed and there was no updated evidence about his current circumstances. Much less is there any evidence about the steps he has taken to secure other employment, what hours he may have worked for another employer in the intervening period, what work might be in the pipeline for him or the value of any earnings in that period. There is no evidence about any Centrelink or other government benefits that the applicant might have secured since swearing his affidavit. The applicant has not provided any evidence of any eviction or threatened eviction from his residence, nor is there any evidence about any significant rental arrears. He has not provided any evidence about whether he can apply for or has sought rental assistance, nor does he say whether, despite her status as a student, the applicant’s spouse now has any employment or other earning capacity.

5. Second, all the applicant’s claims including the new general protections breach claim sound in damages or compensation, which I consider would be an entirely adequate remedy for the applicant. There is no suggestion that the applicant’s skills are such that he will suffer damage by not working or that the first respondent is the only employer able to employ the applicant having regard to his skills and experience. And although the first respondent claims to have experienced a downturn in business, there is no suggestion that the respondents would not be able to make good on an order for damages or compensation. Moreover, there is no suggestion that the applicant’s rights might be damaged in a way that would render the substantive proceedings inutile or useless.

6. Third, orders of the kind sought are usually designed to preserve the pre-dispute status quo. Here there is a substantial dispute about that which is the status quo. The applicant seeks an order compelling the first respondent to offer to the applicant shifts of work at an hourly rate of $40.00 in such quantity and duration so that across each full calendar month the applicant is offered at least 100 hours of work. How this represents the status quo is not explained. Indeed, on the applicant’s case, it is not the status quo because he says he is a full-time employee. Beyond seeking to re-fashion the orders sought, to address concerns about whether the original form of orders he sought reflected the status quo, the applicant has also not explained how such an order is justified.

7. Fourth, in so far as the applicant seeks an order restraining the first respondent from taking any step to unlawfully terminate or to unlawfully suspend the applicant from his employment, the first respondent has provided undertakings, inter alia, that it has not suspended or terminated the applicant’s employment, and that it will maintain the applicant’s employment on a casual basis and otherwise maintain the status quo. As a minimum, the effect of the undertaking, which is given to the Court and has the same effect as an order, is that the applicant’s employment is continuing, albeit there remains a dispute about the nature of the employment – casual or permanent full-time. Beyond that, the order sought does not prevent termination or suspension, merely unlawful termination or suspension of the employment. As such, if made, the order would not restrain the termination of the applicant’s employment but act only as a direction to comply with the law in doing so. Relevantly, the Act already contains prohibitions on termination of employment for prohibited reasons or because an employee has a perceived or actual protected attribute. It also provides remedies for dismissal which is unfair even if lawful. There is no warrant for providing another duplicating layer of protection by Court order.

8. Fifth, although the applicant was prepared to assume (for the purposes of prosecuting the final iteration of the orders he sought and without admission) that the applicant’s employment was as a casual employee, the orders proposed would not, as the applicant asserted, restore and maintain the status quo. The applicant contended that under this assumption the status quo was one in which the first respondent exercises and asserted a right to provide the applicant with a variable number of hours of work over time and says that in that time the applicant was given more than 30 hours of work per week. But the effect of the orders would be to require the first respondent to give the applicant, “at least” 100 hours of work per month until the hearing and determination of the substantive application. This would amount to a firm advance commitment that the work would continue for an indefinite period with a regular pattern of work and is likely incompatible with the assumption that the applicant is a casual employee. It would amount to a requirement that the first respondent employ the applicant as a part-time employee who has a guaranteed minimum number of hours per month.

9. The application for interlocutory relief is dismissed.

10. The proceeding will otherwise be remitted to the Adverse Action List for further case management as contemplated by Order 4 of the orders made by Registrar Wilson on 15 April 2025.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.

Associate: 

Dated:       13 June 2025