FEDERAL COURT OF AUSTRALIA

CPSU, The Community and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176

INDUSTRIAL LAW – employer issued directive that flex leave would not be approved for staff to participate in a national union day of protest – interlocutory relief – test for grant of interim injunction – whether serious question to be tried – whether union is an ‘eligible person’ within meaning of the Act – employee entitled to flex leave subject to operational requirements – whether employee injured in his employment or had his position altered to his detriment – whether directive issued for a prohibited reason – Held: there are serious questions to be tried warranting the grant of interlocutory relief

Administrative Appeals Tribunal Act 1975 (Cth) s 27(1)

Public Service Act 1999 (Cth) s 9

Workplace Relations Act 1996 (Cth) ss 153, 778, 792, 793, 806, 807, 809, 838

Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited (1994) 49 FCR 250 cited

Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 cited

Australian Broadcasting Corporation v O’Neill (2006) 229 ALR 457 applied

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 referred to

McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828 applied

National Union of Workers v Qenos Pty Ltd (2001) 108 FCR 90 cited

Oshlack v Richmond River Council (1998) 193 CLR 72 cited

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION AND GREGORY MCCARRON v COMMONWEALTH OF AUSTRALIA

NSD 2318 OF 2006

BRANSON, TAMBERLIN AND MADGWICK JJ

1 DecemBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be allowed and orders 1 and 3 of the orders made by Cowdroy J on 24 November 2006 be set aside.

2.                  The Office of the Employment Advocate issue an all staff e‑mail stating that: ‘All employees are to disregard the email directive from Ms Skarratt of 18 October 2006.  The directive is to have no application to the determination of leave applications made for 30 November 2006. Any such leave applications will be considered in accordance with normal agreement and agency procedures’.  The Office of the Employment Advocate will exercise its best endeavours to have the e‑mail issued by 5 pm on 28 November 2006.

3.                  The second appellant’s application for flex leave made on 6 November 2006 be reconsidered in accordance with normal agreement and agency procedures without reference to the directive of Ms Skarratt of 18 October 2006.  The second appellant be advised by 2 pm on 29 November 2006 of the result of the reassessment.

4.                  The Office of the Employment Advocate reassess all applications made between 18 October 2006 and 28 November 2006 for leave to be taken on 30 November 2006.  The reassessment of such applications for leave be undertaken in accordance with normal agreement and agency procedures and without reference to the directive of Ms Skarratt of 18 October 2006.  All applicants for leave are to be notified by 2 pm on 29 November 2006 of the result of the reassessment. 

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

REASONS FOR JUDGMENT

Introduction

1                     The first appellant is an industrial association within the meaning of the Workplace Relations Act 1996 (Cth) (‘the WR Act’).  Many of its members are Australian Public Service (‘APS’) employees.  Some of its members work in the Office of the Employment Advocate (‘OEA’).  The staff who assist the Employment Advocate are APS employees (s 153 of the WR Act; s 9 of the Public Service Act 1999 (Cth)).

2                     In early October 2006 the CPSU began to advertise a ‘national community and union Day of Action’ (‘the Rally’) to be held on 30 November 2006.  The CPSU e-News: Issue 60 – 5 October 2006 contained the following exhortation:

‘GET READY FOR THE DAY OF ACTION – 30 NOV … The next Your Rights at Work national community and union Day of Action will be held on Thursday morning, 30 November … Attending activities on 30 November is not ‘industrial action’ so CPSU members are encouraged to get leave approved now for that day eg flexi/recreation/RDO ….’

3                     On 18 October 2006 Ms Ann Skarratt, Corporate Director of the OEA, sent an e-mail to all OEA staff on the subject ‘National Day of Community Protest’.  It is appropriate to set out the content of the e-mail, which we will hereafter call ‘the directive’, in full.  It reads as follows:

‘The CPSU has announced a national rally to take place on 30 November 2006 (see http://www.cpsu.org.au/campaigns/IRCampaign/resources/1155528233_19250.html for further details)

The OEA’s position is that on that day, 30 November – just like every other working day – the OEA must be able to operate normally and provide the full range of services to its clients.  For this reason, leave (including flex leave) will not be approved for staff to participate in the “National Day of Community Protest”.  Employees will be expected to start work at the time they normally do.

If an OEA employee applies for sick leave to cover 30 November, their manager can request that they provide a medical certificate.  Likewise, where there is an application for carer’s leave, the employee’s supervisor may request a written declaration from the employee.

Of course, any leave previously approved, that runs over 30 November, will stand.

If staff absent themselves from the workplace without approved leave, this will be an unauthorised absence and salary will be deducted for the duration of the unauthorised absence.

Managers and supervisors will record details of any employees on unauthorised absence, and notify the details to Human Resources, which will arrange for salary deductions to be made.

If you have any questions or require clarification on any of the above please do not hesitate to contact Sue McIntosh or Julie Newman, National HR Manager, on extension 30535.’

4                     On 6 November 2006 Gregory McCarron, an APS employee within the OEA and a member of the CPSU, applied to use flex leave to attend the Rally.  On 10 November 2006 he received advice that his application would not be approved ‘in view of the directive from the Corporate Director on 18 October 2006’.

5                     On 15 November 2006 the CPSU and Mr McCarron filed an application in the Court seeking, among other relief:

·        a declaration that the Commonwealth breached s 792(1) of the WR Act in that it subjected employees to a disadvantage in their employment for a reason prohibited under s 793(1)(a) of the WR Act by making the determination of the OEA on 18 October 2006 that employees would not be permitted to take leave to attend the Rally; and

·        a declaration that the Commonwealth breached s 792(1) of the WR Act in that it injured Mr McCarron in his employment and altered his position to his prejudice for a reason prohibited under s 793(1)(a) of the WR Act in that it prevented Mr McCarron from having access to flex leave or the opportunity to utilise flex leave provisions on 30 November 2006.

6                     The application, as subsequently amended, additionally claims injunctions including, by way of interlocutory relief, an interim injunction restraining the Commonwealth from refusing applications for, or revoking approvals for, flex leave or annual leave however so described made by employees engaged in the OEA for reasons other than genuine operational requirements.

7                     On 24 November 2006 a Judge of the Court dismissed the application for interlocutory relief on the basis that there was no serious question to be tried.  However, his Honour granted leave to appeal and ordered that a Full Court be convened as soon as possible to hear the appeal.

8                     On 28 November 2006 this Full Court heard the appeal from the interlocutory judgment pronounced by his Honour.  At the close of argument, for reasons to be subsequently published, the appeal was allowed and interlocutory relief granted in the terms annexed hereto.  These are those reasons.

Statutory Provisions

9                     Part 16 of the WR Act, which is comprised of s 778 – s 813, is entitled ‘Freedom of association’.

10                  Section 792 relevantly provides:

‘(1)      An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a)        …;

(b)        injure an employee in his or her employment;

(c)        alter the position of an employee to the employee’s prejudice;

…

(2)               Subsection (1) is a civil remedy provision.’

Conduct referred to in s 792(1) is for a ‘prohibited reason’ if it is carried out because the employee is a member of an industrial association (s 793(1)(a)).

11                  Section 807 empowers the Court, on the application of an ‘eligible person’, to make orders, including injunctions, in relation to a person who has contravened a civil remedy provision of Part 16 of the WR Act. 

12                  An ‘eligible person’ for the purposes of s 807 includes a person, who may be an industrial association, affected by the contravention (s 806 and s 807(4)).

13                  Section 838 of the WR Act provides that if, under a provision of the Act, a court may grant an injunction, the court may, if in its opinion it is desirable to do so, grant an interim injunction pending its decision on the granting of the injunction. 

Test for Grant of Interim Injunction

14                  The Court’s discretion under s 838 of the WR Act to grant an interim injunction is conferred in wide terms.  Nonetheless, the discretion must be exercised judicially; that is, ‘not arbitrarily, capriciously or so as to frustrate the legislative intent’ (Oshlack v Richmond River Council (1998) 193 CLR 72 per Gaudron and Gummow JJ at [22]).  Additionally, as the discretionary power to grant interlocutory injunctions has a long history, the discretion is to be exercised according to established principles (Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 per Gleeson CJ at [10]).

15                  It is well established that a proper purpose of an interlocutory injunction is to maintain the status quo until the rights of the parties can be determined at final hearing (ABC v Lenah Game Meats per Gleeson CJ at [9]‑[10]).

16                  The principles governing the grant or refusal of interlocutory injunctions have recently been confirmed in Australian Broadcasting Corporation v O’Neill (2006) 229 ALR 457 (‘O’Neill’).  Gleeson CJ and Crennan J at [19] observed:

‘… in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd [(1968) 118 CLR 618] should be folIowed.’ (footnotes omitted)

17                  In O’Neill Gummow and Hayne JJ at [65] stated:

‘The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries, and continued:

“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”

By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. … With reference to the first inquiry, the court continued, in a statement of central importance for this appeal:

“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”’ (footnotes omitted)

18                  At [70] Gummow and Hayne JJ make clear that they (like Gleeson CJ and Crennan J) have no objection to the use of the phrase ‘serious question’ if it is understood as conveying the notion that the seriousness of the question depends on the considerations emphasised in Beecham Group Limited v Bristol Laboratories Pty Ltd.  At [71] their Honours emphasise that the governing consideration is that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.

19                  No suggestion was raised on this appeal, or it seems before the primary judge, that damages would provide adequate compensation to the appellants should they be entitled to final relief.  Nor was it suggested that, if a serious question to be tried were shown, the balance of convenience did not favour the granting of an injunction.  The practical consequences likely to flow from the grant of the interlocutory orders sought are principally that applications from staff of the Employment Advocate to take leave on 30 November 2006 will be assessed in the usual way.  The critical issue before the primary judge, and on this appeal, is therefore whether the appellants have demonstrated a serious question to be tried, in the sense discussed by the High Court in O’Neill, as to their entitlement to final relief.

Reasons for Judgment of the Primary Judge

20                  His Honour’s reasons for judgment record a number of findings which his Honour summarised as follows:

‘1.        The CPSU is not an eligible person within the meaning s 807(4) of the Act because it is not a person affected by the contravention pursuant to s 807(4)(b) of the Act.

2.         McCarron had no entitlement to take flex leave on the Day of Protest. The entitlement to leave is dependent upon the OEA approving flex leave subject to its operational requirements.

3.         Adequate staffing levels of the OEA constituted the relevant consideration of operational requirements for 30 November 2006.

4.         The directive refusing approval for leave requests for 30 November 2006 did not injure McCarron in his employment nor threaten to do so within the meaning contained in s 792(1)(b) of the Act because he had no entitlement to flex leave for that day.

5.         The promulgation of the directive does not constitute a prohibited reason within the meaning of s 793(1) of the Act.’

21                  As the application with which the primary judge was dealing was an application for interlocutory relief, his Honour could only deal provisionally with both factual and legal issues.  The matter had not been listed for final hearing.  The parties, as his Honour was apparently advised, had not filed all of the affidavit evidence upon which they intended to rely at the final hearing.  Additionally, some evidence adduced on the interlocutory hearing before his Honour may not have been admissible at trial.

22                  For the above reasons it is appropriate, we think, to regard the primary judge’s five findings as provisional findings made on the basis that his Honour concluded that, on the evidence then before him, each of them was appropriate to be made in the sense that the contrary position had not been shown to be seriously arguable.

Consideration

Is the CPSU an ‘eligible person’ within the meaning of s 807(4)?

23                  On appeal the Commonwealth did not seek to support the provisional finding of the primary judge (assuming that his Honour’s finding is properly so characterised) that there is not a serious question to be tried on the issue of whether the CPSU is an ‘eligible person’ within the meaning of s 807(4) of the WR Act as a person affected by the alleged contravention. 

24                  The expression ‘a person affected by the contravention’ in s 807(4) is similar to, but arguably broader than, the expression ‘any person … whose interests are affected by the decision’ in s 27(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’).  In Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited (1994) 49 FCR 250 at 272 Gummow J observed when considering s 27 of the AAT Act:

‘Like the expression “a person aggrieved”, the phrase “a person whose interests are affected by the decision” and cognate terms, appear in a variety of statutes as the identification of the persons who are given standing to seek administrative or judicial review. The day is long gone when there was any general presumption that in such statutes the “interests” concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law … In each case, the content of the terms “affect” and “interest” are to be seen in the light of the scope and purpose of the particular statute in issue.’

Davies J at 260 expressed similar views.

25                  As mentioned above, the CPSU is an industrial association within the meaning of the WR Act.  The objects of Part 16 of the WR Act, in which s 807 is found, include ensuring that employers and employees are free to become, or not become, members of industrial associations and that they are not discriminated against or victimised because they are, or are not, members of industrial associations (s 778).  The contravention of a civil remedy provision alleged in the proceeding at first instance was that the Commonwealth had engaged in conduct for the prohibited reason that employees were members of the CPSU.  The CPSU adduced evidence before his Honour which illustrated its support for, and involvement with, the Rally and its endeavours to maximise the attendance of its members at the Rally.

26                  Having regard to the scope and purpose of the WR Act, and in particular Part 16 of that Act, we agree that there is a serious question to be tried as to the entitlement of the CPSU to make an application to the Court under s 807 as an ‘eligible person’.

Mr McCarron’s entitlement concerning flex leave

27                  The Secretary of the Department of Employment and Workplace Relations, on behalf of the Commonwealth, has made Australian workplace agreements (‘AWAs’) with Mr McCarron and other staff working in the OEA.  Clause 22 of these AWAs provides that managers and employees will ensure that flexible working arrangements in the agreement are used, amongst other things, to achieve working patterns which provide a balance between work and personal lives.  Clause 30 relevantly provides that the approval of flex leave is subject to operational requirements and that the employee may take a maximum of five days flex leave in any one settlement period (apparently a period of four weeks).  The OEA has published a policy document concerning flexible working arrangements which became effective on 1 July 2005. This policy document does not appear to add relevantly to the terms of the AWAs.

28                  It was not contended by the appellants that Mr McCarron, or any other OEA employee, has an entitlement to take flex leave on 30 November 2006.  The contention of the appellants is that Mr McCarron has a contractual entitlement under his AWA to have his application to take flex leave on 30 November 2006 assessed in accordance with his AWA; that is, in the light of the operational requirements of his work group and without reference to the directive.

29                  The Commonwealth agreed on appeal that Mr McCarron’s AWA provided for a flex leave approval process dictated by operational requirements.  For this reason we conclude that there are serious questions to be tried that (1) Mr McCarron has an entitlement under his AWA to have his application for flex leave assessed in the light of the genuine operational requirements of his work group and (2) that the directive is inconsistent with the terms of Mr McCarron’s AWA.

Did the directive injure Mr McCarron in his employment or alter his position to his detriment?

30                  The primary judge’s fourth finding (see [20] above) does not expressly deal with the appellants’ case that the directive altered Mr McCarron’s position to his prejudice (s 792(1)(c)).  However, his Honour’s reasons for judgment recognise elsewhere that the appellants relied on s 792(1)(c).  For this reason his Honour’s fourth finding is to be understood, we think, as encompassing a finding that the directive did not alter Mr McCarron’s position as an employee to his detriment.

31                  His Honour’s finding that the directive did not, and did not threaten to, injure Mr McCarron in his employment or alter his position as an employee to his prejudice was based on his Honour’s earlier finding that Mr McCarron had no entitlement to flex leave on 30 November 2006.  As mentioned above, that finding reflected a misunderstanding of the appellants’ case.

32                  It is strongly arguable that an employee is injured in his or her employment if the employer disregards the employee’s rights under his or her contract of employment.  It is also strongly arguable that the position of an employee is altered to his or her disadvantage if the employer acts in a way which is inconsistent with the employee’s contractual rights.  For these reasons, the Commonwealth’s concession that Mr McCarron has a contractual right to have his application for flex leave considered according to a process dictated by operational requirements leads to the conclusion that there is a serious question to be tried that the directive injured, or threatened to injure, Mr McCarron in his employment or altered, or threatened to alter, Mr McCarron’s position to his prejudice. 

Was the directive issued for a prohibited reason?

33                  For the above reasons, the central issue on this appeal is whether the appellants have demonstrated a serious question to be tried on the issue of whether the directive was issued for a prohibited reason within the meaning of s 793(1) of the WR Act.

34                  Mr McCarron works within the OEA in the business unit known as Agreement Services.  Mr McCarron gave unchallenged evidence that flex leave in his workplace is normally approved by a business unit manager/team leader who is responsible for determining operational requirements.  Mr McCarron also gave unchallenged evidence that he has made many previous applications for flex leave and they have all been processed by the team leader making an assessment of whether the operational requirements of the business unit could be met on the day in question.  The team leader, Mr McCarron claimed, made this assessment by consulting an ‘Outlook calendar’ which recorded the number of employees in the team who would be on leave on the relevant day.  Mr McCarron was not aware of Ms Skarratt having ever been involved in assessing the operational requirements of his team for leave purposes.

35                  Mr McCarron also gave evidence that he had regularly seen 16 and 18 people absent from Agreement Services at any one time; that is, approximately 20% of the employees in the business unit.  He said that on many occasions in the past year the Sydney Office of OEA had operated with about this number of staff absent.

36                  Mr McCarron additionally gave evidence that to the best of his knowledge there has only been one other occasion on which an all staff e-mail had advised that leave would not be available on a particular day because of operational requirements; that e-mail had been sent by Ms Skarratt on 7 November 2005 regarding the day of protest that was held on 15 November 2005.  The e-mail of 7 November 2005 is in evidence.  It is in similar terms to the directive.  Its opening lines are as follows:

‘The OEA has been asked whether managers can approve leave for staff for the purpose of participating in the “National Day of Community Protest” on Tuesday 15 November 2005.  The answer is no.’

37                  Mr McCarron twice sought to take up the offer made by the directive of contacting Ms McIntosh to seek clarification of the e-mail.  In particular he sought clarification of the difference between using his flexible working conditions to go shopping for a couple of hours, having a very long lunch, or going to listen to some speakers for a couple of hours.  He received no response on either occasion.

38                  Stephen Jones is the National Secretary of the Public Sector Union Group of the CPSU.  He gave evidence that the CPSU considers maximising attendance at the Rally as an important objective critical to the ongoing success of the union movement’s ‘Your Rights at Work’ campaign and that it had encouraged CPSU members to attend the Rally. 

39                  On 19 November 2006 Mr Jones wrote to the Employment Advocate, Mr Peter McIlwain, concerning the directive.  His letter asserted that OEA’s decision to refuse all leave applications where the purpose of the leave was to attend the Rally was in breach of the employees’ rights under the relevant industrial instrument and of the freedom of association provisions of the WR Act.

40                  Mr McIlwain responded to Mr Jones by a letter dated 25 October 2006.  The letter states:

‘My decision to restrict access to leave on 30 November 2006 is motivated solely by the need to ensure that the OEA continues to operate in a normal fashion on that day.

The purpose of the event on 30 November is irrelevant.  The decision would be the same, whatever the purpose of the event, where the event was conducted in all States and Territories, on a weekday, during business hours.

… The direction was given so that the operational requirements of the Office could continue to be fulfilled.  The OEA has obligations to its clients, set out in its Service Charter, which require the presence of staff in all its offices.’

Mr McIlwain’s letter also drew attention to the fact that the directive applies equally to staff who are members of the CPSU and staff who are not.  Mr McIlwain’s letter did not elaborate on the assertion contained in it that his decision to restrict access to leave on 30 November 2006 was necessary to ensure that the OEA operated in a normal fashion on that day. 

41                  Mr McIlwain did not give evidence on the application for interlocutory relief.  Indeed, no evidence was adduced by the Commonwealth before the primary judge other than pursuant to a short cross-examination of Mr McCarron.  It was not suggested by the Commonwealth that any impediment stood in the way of Mr McIlwain or Ms Skarratt giving evidence before the primary judge. 

42                  There was therefore no sworn evidence before the primary judge as to the truth of the assertions contained in Mr McIlwain’s letter of 25 October 2006.  Nor did his Honour have the benefit of Mr McIlwain’s answers to questions which would almost certainly have been asked of him had he been available for cross‑examination.  It may be assumed that a cross-examiner would have probed why the ordinary procedures for approving or refusing flex leave applications would not have operated satisfactorily for 30 November 2006.  He or she would also have been likely to probe why the directive advised that ‘leave (including flex leave) will not be approved for staff to participate in the “National Day of Community Protest”’ and whether this implied that leave could be approved for other purposes.

43                  The primary judge concluded that because the directive related to all employees of the OEA, and was not directed solely to members of the CPSU, it was not issued for a prohibited reason.  His Honour supported that conclusion by reference, in the first instance, to a passage from the reasons for judgment of Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828 at [347].  Unfortunately the passage relied upon by his Honour is a summary by Greenwood J of a contention advanced by the respondents in that case.  His Honour did not accept that contention.  Rather, at [355] Greenwood J, after referring to the decision of Weinberg J in National Union of Workers v Qenos Pty Ltd (2001) 108 FCR 90, concluded:

‘Dismissal of employees for a prohibited reason within a group of employees some of whom may be dismissed for a non-prohibited reason does not remove the individual or bilateral character of the prejudicial conduct on the part of the employer as against that employee.  It would be an odd thing if the statutory quality of contravening conduct in respect of some employees could be dissolved amongst a group and remedial entitlements otherwise available to the affected individuals thereby lost.  The question is whether the conduct, from the standpoint of the individual, notwithstanding others, represents conduct carried out for a prohibited purpose.’

44                  In National Union of Workers v Qenos Pty Ltd, to which the primary judge also referred,Weinberg J had concluded, after a careful analysis of the evidence, that it had not been established as a matter of fact in that case that the decision of the employer to adopt a ‘spill and fill’ process in respect of its employees was conduct directed to any individual employee.

45                  In the present case the appellants will be required at trial to demonstrate that the directive was directed at one or more OEA employees by reason of membership of an industrial association.  For the reasons given by Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd there is, at the lowest, a serious question to be tried that conduct that is engaged in for a prohibited reason so far as some employees are concerned, is not rendered lawful merely because the conduct extends also to other employees.

46                  As mentioned above, the parties have not at this early stage in the history of the proceeding at first instance filed all of the evidence in chief on which they will respectively rely at trial.  No finding can therefore be made as to whether the directive was issued for a prohibited reason, or for reasons that included a prohibited reason.  However, having regard to the evidence, and absence of evidence, identified in [34]-[42] above, we conclude that the evidence before the primary judge was capable of giving rise to the inference that the Commonwealth was aware that members of the CPSU were significantly more likely than their non-unionised workmates to wish to take leave to attend the Rally and, for that reason, was willing to restrict all OEA employees’ access to leave on the day of the Rally for the purpose of preventing CPSU members from attending.  Whether this inference is in fact drawn at trial will depend, of course, on the totality of the evidence then before the Court. 

47                  We are therefore satisfied that the evidence before the primary judge was sufficient to show a serious question to be tried, in the sense discussed in O’Neill, on the issue of whether the directive was issued for a prohibited reason, or for reasons which included a prohibited reason.  We reach this conclusion without reference to the presumption for which s 809(1) of the WR Act provides (see s 809(2)).  It is therefore unnecessary for us to express any view on the difficult question of the proper operation of s 809(2).

Conclusion

48                  For the above reasons, on 28 November 2006 the appeal was allowed.  The consequential orders made by the Court on that day are in terms agreed by the parties to be appropriate in the circumstances.

Associate:

Dated:         1 December 2006