FEDERAL COURT OF AUSTRALIA
Trego v Wesbeam Pty Ltd [2019] FCA 1030
File number: VID 699 of 2019 Judge: MORTIMER J Date of judgment: 1 July 2019 Catchwords: INDUSTRIAL LAW – termination of employment – interlocutory application for reinstatement – whether prima facie case is sufficiently strong – whether balance of convenience favours grant of interlocutory relief Legislation: Fair Work Act 2009 (Cth) ss 340, 343, 346, 348, 350, 361, 545, 570
Child Support (Registration and Collection) Act 1988 (Cth) s 67
Cases cited: Australian Workers’ Union v Chemring Australia Pty Ltd [2019] FCA 750
Date of hearing: 28 June 2019 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 85 Counsel for the Applicants: Mr Y Bakri Solicitor for the Applicants: Slater and Gordon Counsel for the Respondents: Mr M Scott Solicitor for the Respondents: Australian Business Lawyers & Advisors ORDERS
VID 699 of 2019 BETWEEN: JOHN TREGO
First Applicant
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
Second Applicant
AND: WESBEAM PTY LTD (ACN 004 268 017)
First Respondent
SUE KROUZECKY
Second Respondent
MARK BLICK
Third Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
1 JULY 2019
UPON:
A.The first respondent by its counsel undertaking until the hearing and determination of the application or further order to not induce any of its employees engaged at the factory located in Dandenong, Victoria, including by offering a promotion, to cease to be members of the second applicant; and
B.The second applicant by its counsel undertaking, on behalf of both applicants, to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and to pay the compensation referred to the person there referred to.
THE COURT ORDERS THAT:
1.Until the final hearing and determination of this application, or further order, the termination of the first applicant’s employment with the first respondent on 13 June 2019 is to be treated as invalid and of no force or effect, and the first respondent is to reinstate the first applicant in the employment he had before that date.
2.The proceeding be referred to the National Operations Registry for allocation to a docket judge, for the purposes of an expedited hearing.
3.There be no orders as to the costs of the interlocutory application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
This interlocutory application was heard by me on an urgent basis on 28 June 2019 in my…
Details
- AGLC
- Trego v Wesbeam Pty Ltd [2019] FCA 1030
- Case
- [2019] FCA 1030
- Decision Date
CaseChat Overview and Summary
The case of Trego v Wesbeam Pty Ltd involves an application for interlocutory relief in relation to the termination of employment of Mr John Trego from Wesbeam Pty Ltd. Mr Trego, a 41-year-old man, was dismissed from his position as a factory hand at Wesbeam’s factory in Dandenong, Victoria, on 13 June 2019. Following his dismissal, Mr Trego and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) lodged an application for relief, including reinstatement of Mr Trego’s employment, in the Federal Circuit and Family Court of Australia.
The central legal issues before the Court were whether the applicants had established a prima facie case strong enough to warrant interlocutory relief, and whether the balance of convenience favoured the grant of such relief. The applicants argued that Mr Trego's dismissal was wrongful and that the union's activities were a contributing factor. They contended that the balance of convenience favoured reinstatement as it would mitigate the potential harm to Mr Trego’s livelihood and ongoing employment uncertainty. Wesbeam, on the other hand, argued that the applicants had not established a sufficiently strong prima facie case for interlocutory relief and that the balance of convenience did not favour the grant of such relief.
The Court considered the evidence and submissions from both parties. It found that the applicants had presented a prima facie case that was sufficiently strong to warrant interlocutory relief. The Court also concluded that the balance of convenience favoured the grant of such relief, as the reinstatement of Mr Trego would likely result in less harm than if the relief were not granted. The Court noted that although bargaining negotiations had stalled, there was no evidence to suggest that Wesbeam would not continue to engage in good faith with the union moving forward.
Accordingly, the Court granted the interlocutory relief sought by the applicants. The termination of Mr Trego’s employment was treated as invalid and of no force or effect until the final hearing and determination of the application. The proceeding was referred to the National Operations Registry for allocation to a docket judge for an expedited hearing. There were no orders as to the costs of the interlocutory application.
The central legal issues before the Court were whether the applicants had established a prima facie case strong enough to warrant interlocutory relief, and whether the balance of convenience favoured the grant of such relief. The applicants argued that Mr Trego's dismissal was wrongful and that the union's activities were a contributing factor. They contended that the balance of convenience favoured reinstatement as it would mitigate the potential harm to Mr Trego’s livelihood and ongoing employment uncertainty. Wesbeam, on the other hand, argued that the applicants had not established a sufficiently strong prima facie case for interlocutory relief and that the balance of convenience did not favour the grant of such relief.
The Court considered the evidence and submissions from both parties. It found that the applicants had presented a prima facie case that was sufficiently strong to warrant interlocutory relief. The Court also concluded that the balance of convenience favoured the grant of such relief, as the reinstatement of Mr Trego would likely result in less harm than if the relief were not granted. The Court noted that although bargaining negotiations had stalled, there was no evidence to suggest that Wesbeam would not continue to engage in good faith with the union moving forward.
Accordingly, the Court granted the interlocutory relief sought by the applicants. The termination of Mr Trego’s employment was treated as invalid and of no force or effect until the final hearing and determination of the application. The proceeding was referred to the National Operations Registry for allocation to a docket judge for an expedited hearing. There were no orders as to the costs of the interlocutory application.
Orders
Orders of the court
1. Until the final hearing and determination of this application, or further order, the termination of the first applicant’s employment with the first respondent on 13 June 2019 is to be treated as invalid and of no force or effect, and the first respondent is to reinstate the first applicant in the employment he had before that date.
2. The proceeding be referred to the National Operations Registry for allocation to a docket judge, for the purposes of an expedited hearing.
3. There be no orders as to the costs of the interlocutory application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Some of the affidavit material filed on behalf of the respondents came in shortly before and during the oral hearing. That is no criticism of the respondents, who responded as promptly as they could to the application. All the parties’ material has now been considered. RELEVANT FACTS The first applicant, Mr John Trego, is a 41 year old man. He worked in the mining industry in Western Australia for about 18 years, before relocating to Melbourne in November 2018 following the breakdown of his marriage around two years prior. He has four children whom he supports financially. Mr Trego was employed by the first respondent, Wesbeam Pty Ltd, on or about 29 October 2018. He worked as a factory hand at Wesbeam’s factory in Dandenong, Victoria. On 17 April 2019, he became a member and delegate of the second applicant, which I refer to in these reasons as the CFMMEU or the union. The circumstances in which he came to be a member of the union, and his activities as a union delegate, are central to the applicants’ allegations. Mr Trego was dismissed from his employment with Wesbeam on 13 June 2019, which led to the initiation of this proceeding. As set out in the applicants’ outline of submissions, by reference to evidence from Mr Flanagan’s second affidavit, Wesbeam’s Dandenong factory prepares and packages timber for sale to retailers such as Bunnings. It is a relatively small workplace with approximately 23 employees in total. Mr Trego deposes that approximately 15 employees work on the “shop floor” (where he worked prior to his dismissal). As counsel for the applicants contended at the hearing and in written submissions, at the time Mr Trego was employed, it was fair to describe Wesbeam’s Dandenong factory as a “non-unionised” workplace. Counsel contended, and for the purposes of this interlocutory application I accept, that at the time of Mr Trego’s employment there was no enterprise agreement applicable to the factory’s shop floor employees; rather, their employment conditions were governed by the Timber Industries Award 2010. On the evidence, that remains the situation. Relevantly to the resolution of the interlocutory application, Mr Trego deposes to the following matters concerning the first four months of his employment at the Wesbeam factory:(a)he took on a “leading hand” role shortly after commencing his employment, at the request of Te Rako Mahuta (Mr Rako), the factory Production Manager, however this role was “never formalised” and he was not paid by Wesbeam as a leading hand;(b)he ordinarily worked the hours of 6am to 2pm on a Monday to Friday, as both a factory hand and as the person who “ran the factory floor on the day shift”;(c)he was initially employed on a permanent full-time basis at an hourly wage of $23.70, with a six month probationary period; (d)he socialised regularly with his Wesbeam colleagues, both at and outside work;(e)he worked on average 80 to 100 hours per fortnight, and regularly worked past his rostered finish time of 2pm, for which he was paid overtime; and(f)he was “always the first to be asked” by Mr Rako or Mark Blick (the factory Operations Manager and third respondent) if he wanted to work overtime, and became reliant on regularly receiving that amount of income (which was “about $1,800 per fortnight”).
Evidence
Evidence Before The Court
For the reasons that follow, I find it is appropriate to grant the interlocutory relief sought in favour of the first applicant. Relief in favour of the second applicant is not necessary, given the undertaking proffered to the Court on behalf of the first respondent. THE EVIDENCE BEFORE THE COURT At the interlocutory hearing, the applicants read and relied on the following affidavits:(a)affidavit of John Trego affirmed on 26 June 2019;(b)affidavit of Steven Abboushi sworn on 26 June 2019; and(c)second affidavit of Bronson Flanagan affirmed on 28 June 2019. The respondents read and relied on the following affidavits:(a)affidavit of Mark Desmond Blick affirmed on 28 June 2019;(b)affidavit of Sue Krouzecky sworn on 28 June 2019; and(c)affidavit of Peter James Board affirmed on 28 June 2019. Some of the affidavit material filed on behalf of the respondents came in shortly before and during the oral hearing. That is no criticism of the respondents, who responded as promptly as they could to the application. All the parties’ material has now been considered. RELEVANT FACTS The first applicant, Mr John Trego, is a 41 year old man. He worked in the mining industry in Western Australia for about 18 years, before relocating to Melbourne in November 2018 following the breakdown of his marriage around two years prior. He has four children whom he supports financially. Mr Trego was employed by the first respondent, Wesbeam Pty Ltd, on or about 29 October 2018. He worked as a factory hand at Wesbeam’s factory in Dandenong, Victoria. On 17 April 2019, he became a member and delegate of the second applicant, which I refer to in these reasons as the CFMMEU or the union. The circumstances in which he came to be a member of the union, and his activities as a union delegate, are central to the applicants’ allegations. Mr Trego was dismissed from his employment with Wesbeam on 13 June 2019, which led to the initiation of this proceeding. As set out in the applicants’ outline of submissions, by reference to evidence from Mr Flanagan’s second affidavit, Wesbeam’s Dandenong factory prepares and packages timber for sale to retailers such as Bunnings. It is a relatively small workplace with approximately 23 employees in total. Mr Trego deposes that approximately 15 employees work on the “shop floor” (where he worked prior to his dismissal). As counsel for the applicants contended at the hearing and in written submissions, at the time Mr Trego was employed, it was fair to describe Wesbeam’s Dandenong factory as a “non-unionised” workplace. Counsel contended, and for the purposes of this interlocutory application I accept, that at the time of Mr Trego’s employment there was no enterprise agreement applicable to the factory’s shop floor employees; rather, their employment conditions were governed by the Timber Industries Award 2010. On the evidence, that remains the situation. Relevantly to the resolution of the interlocutory application, Mr Trego deposes to the following matters concerning the first four months of his employment at the Wesbeam factory:(a)he took on a “leading hand” role shortly after commencing his employment, at the request of Te Rako Mahuta (Mr Rako), the factory Production Manager, however this role was “never formalised” and he was not paid by Wesbeam as a leading hand;(b)he ordinarily worked the hours of 6am to 2pm on a Monday to Friday, as both a factory hand and as the person who “ran the factory floor on the day shift”;(c)he was initially employed on a permanent full-time basis at an hourly wage of $23.70, with a six month probationary period; (d)he socialised regularly with his Wesbeam colleagues, both at and outside work;(e)he worked on average 80 to 100 hours per fortnight, and regularly worked past his rostered finish time of 2pm, for which he was paid overtime; and(f)he was “always the first to be asked” by Mr Rako or Mark Blick (the factory Operations Manager and third respondent) if he wanted to work overtime, and became reliant on regularly receiving that amount of income (which was “about $1,800 per fortnight”).
Decision
Reasons for decision
Although bargaining negotiations appear to have stalled, there is no reason on the evidence to believe that after the Court’s interlocutory decision, Wesbeam will not understand its obligations to continue to engage in good faith with the union. Wesbeam’s behaviour in this proceeding to date has been generally reasonable and appropriate, and I consider the Court can expect that approach will continue, now it may be more aware of what the FW Act requires. This includes reconsideration of the wisdom of taking the course foreshadowed by counsel during oral submissions of reigniting an “investigation” into Mr Trego’s conduct while these proceedings remain on foot.Conclusion There will be orders in accordance with these reasons. There will be no order for costs, given the terms of s 570 of the FW Act: Wesbeam was entitled to take the approach it did to this application, and oppose it. The proceeding will be referred to the National Operations Registry for allocation to a docket judge in the usual course, with a recommendation for expedition given the interlocutory orders which have been made. Pending trial, the parties will always have liberty to apply to the Court for further or varied interlocutory orders.
Ratio Decidendi
Legal Principle Established
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