FEDERAL COURT OF AUSTRALIA

CPSU, The Community & Public Sector Union v Crown in Right of the State of Victoria [1999] FCA 948

INDUSTRIAL LAW – interlocutory relief – whether serious issue to be tried – whether appropriate to grant injunction – balance of convenience – allegations of threats by the respondent to terminate the employment of the second and third applicants – whether alleged threats fall within category prohibited by s298K of the Workplace Relations Act 1996 (Cth) – allegations of threats to demote, transfer or relocate the second and third applicants – allegations of threats to inflict physical violence upon the second and third respondents.

Workplace Relations Act 1996 (Cth) ss178, 298K, 298V, Part XA

CPSU, The Community and Public Sector Union v Crown in Right of the State of Victoria [1999] FCA 744, referred to

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION v CROWN IN RIGHT OF THE STATE OF VICTORIA

V 107 of 1999

MARSHALL J

23 JUNE 1999

ADELAIDE (heard in Melbourne)

THE COURT ORDERS THAT:

1.      Sub paragraphs 1(a) to (d) inclusive of the applicant’s notice of motion filed on 10 June 1999 (“the notice of motion”) in so far as they relate to termination of the employment of the second and third applicants be adjourned until 10:15am on 4 August 1999.

2.      Upon the first applicant giving the usual undertaking as to damages, the respondent be restrained until the hearing and determination of the proceeding or until further order by itself, its officers, employees and agents from demoting, threatening to demote, transferring, threatening to transfer, relocating or threatening to relocate the second applicant for a prohibited reason under Part XA of the Workplace Relations Act 1996 (Cth).

3.      Sub paragraphs 1(a) to (d) of the notice of motion otherwise be dismissed.

4.      Sub paragraph 1(e) of the notice of motion be adjourned until 10:15am on 4 August 1999.

5.      Sub paragraph 1(f) of the notice of motion be adjourned until 10:15am on 4 August 1999.

6.      Sub paragraphs 1(g) and (h) of the notice of motion be dismissed.

7.      Paragraph 2 of the notice of motion be adjourned until 10:15am on 4 August 1999.

8.      Paragraph 6 of the notice of motion be dismissed.

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

REASONS FOR INTERLOCUTORY JUDGMENT (No 2)

1                     This is the second interlocutory judgment made within this proceeding. The proceeding is an application pursuant to s178 and Part XA of the Workplace Relations Act 1996 (Cth) (“the Act”). The first interlocutory judgment in the proceeding is CPSU, The Community and Public Sector Union v Crown in Right of the State of Victoria [1999] FCA 744. That judgment was published on 7 June 1999. Its reasons should be read in conjunction with these reasons for judgment as the reasons for judgment in the prior interlocutory application set out the background to the proceeding.

2                     On 10 June 1999 the applicants filed a notice of motion in which they sought injunctive relief against the respondent.  That relief sought to restrain the respondent from:

·        terminating, demoting, transferring or relocating the second and third applicants, or threatening to perform those acts;

·        threatening to inflict physical violence against the second and third applicants;

·        insulting, intimidating or humiliating the second and third applicants;

·        not providing the second applicant with, unless mutually agreed otherwise, notless than 80 hours work per fortnight as an officer in charge performing the duties, and exercising the rights and responsibilities of an officer in charge;

·        not providing the third applicant with, unless mutually agreed otherwise, not less than 90 hours per fortnight as a prison officer performing the duties, and exercising the rights and responsibilities of, a prison officer;

·        not providing the second and third applicants with the terms and conditions of employment enjoyed by them between November 1998 and March 1999 including:

(a)    access to, and consideration on merit for participation in training opportunities;

(b)   participation in meetings, seminars, reports, briefings, retreats, camps and other activities commensurate with their rank and the positions held by them.

3                     The notice of motion also sought certain relief regarding discovery and the provision of a defence. Those issues were resolved in the following way: The defence was filed before the notice of motion was first heard on 15 June 1999. The Court made orders regarding discovery on 15 June 1999. The notice of motion was then adjourned to 18 June 1999.

4                     On 18 June 1999, Ms Doyle appeared for the applicants and Mr Parry appeared for the respondent. Ms Doyle sought the making of orders of the nature described above pending the trial of the proceeding which is due to commence on 4 August 1999.

5                     On behalf of his client Mr Parry repeated, in materially identical terms, the undertaking offered on 15 June 1999 and accepted by the Court as a basis for the adjournment of the motion to 18 June 1999. The undertaking offered on 18 June 1999 was in the following terms:

“Without prejudice to the position of the Respondent, until the hearing and determination of this matter, the Respondent undertakes to:

1.                  Not speak to the second and third Applicants about the proceedings herein except where necessary for the allocation of rosters.

2.                  Allocate work to the second and third Applicants on the basis of normal operational requirements and in accordance with the practice prior to March 1999.

3.                  Continue to advertise and offer training, participation in meetings, seminars, reports, briefings, retreats, camps and other activities commensurate with the rank and positions held by the second and third Applicants in accordance with normal operational requirements and the usual practice prior to March 1999.”

Threats to terminate the second and third applicants

6                     In an affidavit in support of the notice of motion the second applicant alleged that Mr Maloney, the operations manager at Barwon Prison, approached him and informed him that Mr Maloney’s superior, Mr Daley, had said the following to Mr Maloney: “find out who the staff are and just fucking well sack them”.  That statement was allegedly said in reference to the staff involved in this proceeding.

7                     Mr Maloney, in his answering affidavit, denied that he said the words the second applicant attributed to him. Mr Maloney was called for cross-examination on his affidavit but was not cross-examined on that denial. Equally the second applicant was not challenged on his account of the conversation.

8                     Mr Parry contended that even if the Court was satisfied that a serious issue to be tried had been established on the question of threats to terminate the employment of the second and third applicants the Court should not grant an injunction given the delay from 11 March 1999 until 10 June 1999 in raising this issue before the Court and having regard to the balance of convenience.

9                     In response Ms Doyle referred to the affidavit of her instructing solicitor, Mr Armstrong, and certain exhibits consisting of an exchange of correspondence between his firm and the Victorian Government Solicitor (“VGS”).  In that correspondence Mr Armstrong sought certain undertakings from the VGS concerning the conduct of the respondent.

10                  The first such letter was dated 14 May 1999. In so far as is presently material Mr Armstrong informed the VGS that:

“We are finally instructed that the employee Applicants are aware of comments made by senior SESG [Security and Emergency Services Group] officers immediately after service of this proceeding on your client, to the effect that any persons assisting the first applicant in relation to the proceeding would be targeted for recriminations.” Acronymn explanation added.

11                  The letter also dealt with other issues including the reduction in the second and third applicant’s working hours and access to training. The writer sought a return to the working conditions enjoyed by the second and third applicants at the commencement of the proceeding. No assurances were specifically sought for the respondent to desist from making threats to terminate the second and third applicants. Perhaps this was because two months had expired since the threats were allegedly made. In response to that letter the VGS asserted that the respondent had not breached “s298(sic) of the (Act)”.

12                  In his letter of 1 June 1999, Mr Armstrong put to the VGS the second applicant’s allegation about the termination comments allegedly attributed by Mr Maloney to Mr Daley. The letter also sought an undertaking that the respondent desist from making further threats. In reply the VGS, by letter dated 1 June 1999, denied the comments attributed to Messrs Maloney and Daley.  Mr Armstrong’s next letter of 2 June 1999 contained no reference to the topic of threats to terminate the employment of the second and third applicants.

13                  On the evidence as it now stands there is a serious issue to be tried regarding whether the respondent threatened to terminate the employment of the second and third applicants for a prohibited reason in the context of Part XA of the Act, particularly having regard to the reverse onus provided by s298V of the Act. In my view, however, the balance of convenience does not favour the grant of interlocutory relief on this aspect of the matter. I am of that opinion due to the lack of evidence indicating a recurrence of any such alleged threat after 11 March 1999. I am also of that opinion due to the delay in raising the matter with the VGS until some two months later and with the Court until a further month had elapsed.

14                  Notwithstanding my view concerning the inappropriateness of injunctive relief on this issue the Court is most concerned that an allegation of threats to terminate employment may have been made for a reason related to the making of an application to this Court.  The Court is also concerned that the second applicant was not sought to be cross-examined on that allegation. Therefore rather than dismiss this part of the notice of motion I will adjourn it to the date of the trial and allow the applicants to reagitate it, should they so desire, on not less than two days written notice to the respondent. If no such liberty to apply has been exercised by 4 pm on 30 July 1999 that part of the notice of motion will automatically stand dismissed. Other aspects of the notice of motion, which I will also adjourn to the trial date, will be subject to liberty to apply on the same basis.

15                  In refusing, albeit temporarily, to grant injunctive relief concerning the alleged threats of termination of employment the Court accepts paragraph 1 of the undertaking offered by the respondent.

Threats to demote, transfer or relocate the second and third applicants

16                  On 9 June 1999, the second applicant received a memorandum from the respondent dated 1 June 1999 in the following form:

“1 June 1999

Robert Murrell

SESG Gatehouse

Initially on 12.12.97 you were offered Casual employment with CORE as a Casual Prison Officer working on the Barwon prison perimeter security. Since 22 November 1998 you have been offered casual employment as the OIC of the perimeter security team. When you were interviewed for this role it was agreed that you would perform the role of OIC perimeter, responsible for security functions of the gatehouse duties at HM Prison Barwon, for a six month period. This position is paid at the Senior Prison officer Casual rate. At the expiration of the six month period the idea was for other casual employees to be given the opportunity to perform the OIC role. This is consistent with the established practise of rotating casual employees through this position to give them experience in performing this role.

I have reviewed your continuing casual employment as the OIC perimeter and have determined that you may continue to be offered casual employment at the level of OIC perimeter for a further three months subject to satisfactory performance, at which point it will be again reviewed.

Forwarded for your information.

W J Allgood

Manager

Security and Emergency Services”

17                  The second applicant perceived the memorandum to be both a threat to the security of his employment and generated in response to his involvement in this proceeding. In his second affidavit he denied that there was any suggestion, up until his receipt of the memorandum, that his employment was temporary and subject to review. He was not cross-examined on that affidavit. I believe that a serious issue to be tried also arises, as the evidence now stands, concerning whether the second applicant has been threatened with demotion, transfer or relocation in contravention of Part XA of the Act. In the circumstances I consider it appropriate to order that the respondent, until the final hearing and determination of the proceeding, be restrained by itself, its officers, employees and agents from demoting, transferring or relocating the second applicant for a prohibited reason under Part XA of the Act. The order will be on the condition that the first applicant give the usual undertaking as to damages. Ms Doyle has indicated that it is prepared to do so. As the evidence now stands I do not consider that there is a serious issue to be tried concerning threats of demotion, transfer or relocation with regard to the third applicant.

Threats to inflict physical violence upon the second and third applicants

18                  The second applicant has given evidence, by affidavit and upon which he has not been challenged, concerning threats of physical violence made to him by Mr Maloney. Mr Maloney has denied making those threats but as the evidence now stands and with regard to s298V of the Act it cannot be said that there is no serious issue to be tried regarding those allegations. The allegations concerning threats to terminate the employment of the personal applicants and the allegations of threats of physical violence are both matters of grave concern to the Court. On the other hand the applicants have been dilatory in bringing these matters before the Court. In weighing up the balance of convenience the Court considers it appropriate to adjourn this aspect of the proceeding until the return date of the trial.  This adjournment is made on the same basis as the adjournment of that part of the motion dealing with threats to terminate and with the Court’s acceptance of paragraph 1 of the respondent’s undertaking.

19                  Although there is currently no direct evidence of any threats of physical violence being made against the third applicant the Court is concerned that if the matters alleged by the second applicant on this issue are correct the third applicant may equally be at risk.

Insulting, intimidating or humiliating conduct

20                  Although there were allegations made that the personal applicants have been the subject of conduct of the type considered to be insulting, intimidating or humiliating to the extent that that conduct does not involve threats of violence it is not, in the Court’s view, conduct which is appropriate for injunctive relief.  This is especially so when one considers the nature of the particular workplace involved. I am content to accept the respondent’s undertaking at paragraph 1 thereof in refusing to grant injunctive relief on this aspect of the matter but will adjourn this part of the motion to the day of the trial on the same basis as I will adjourn that part that deals with threats to terminate the employment of the second and third applicants.

Access to a guaranteed minimum number of working hours

21                  There is evidence before the Court that suggests that since the filing of the application in March 1999 the personal applicants have suffered a diminution in working hours.  I am prepared to accept that as the evidence stands a serious issue to be tried arises for determination on this matter.  However I accept the submission of Mr Parry that any loss suffered as a consequence is recoverable by damages and/or compensation, which in the circumstances would be adequate remedies particularly having regard to the proximity of the trial.  Further, there was no evidence before the Court concerning any financial hardship that would be suffered by the second and third applicants if the Court declined to grant injunctive relief on this part of the motion.  In declining to grant that relief I accept that part of the respondent’s undertaking which is contained in paragraph 2 thereof.

Access to training and other employment related opportunities

22                  I am satisfied that as the evidence now stands a serious issue arises to be tried concerning whether the second and third applicants have been victimised in the context of Part XA of the Act by being denied certain employment entitlements such as access to training.  However having regard to paragraph 3 of the respondent’s undertaking I do not consider injunctive relief to be appropriate in connection with this aspect of the motion.  That is especially so having regard to the proximity of the trial.  I propose also to adjourn this aspect of the motion to the trial date so as to enable the applicants to reagitate it should Ms Doyle’s concerns that the expression “normal operational requirements” in paragraph 3 of the undertaking prove too elastic.  That part of the motion will be adjourned on the same basis as the part dealing with threats to terminate the employment of the second and third applicants.

Actual termination

23                  Having considered it appropriate to adjourn the notice of motion to the trial date in so far as it deals with threats of termination I also consider it appropriate to also adjourn the motion on the same terms in so far as it deals with prohibition of actual termination.

Actual demotion, transfer or relocation

24                  I adopt the approach taken above in respect of threats to demote, transfer or relocate the personal applicants in considering that part of the motion which seeks to prohibit the carrying out of such threats and will accordingly vary the proposed relief identified in that paragraph.

Order

The Court makes the following orders:

1.      Sub paragraphs 1(a) to (d) inclusive of the applicant’s notice of motion filed on 10 June 1999 (“the notice of motion”) in so far as they relate to termination of the employment of the second and third applicants be adjourned until 10:15am on 4 August 1999.

2.      Upon the first applicant giving the usual undertaking as to damages, the respondent be restrained until the hearing and determination of the proceeding or until further order by itself, its officers, employees and agents from demoting, threatening to demote, transferring, threatening to transfer, relocating or threatening to relocate the second applicant for a prohibited reason under Part XA of the Workplace Relations Act 1996 (Cth).

3.      Sub paragraphs 1(a) to (d) of the notice of motion otherwise be dismissed.

4.      Sub paragraph 1(e) of the notice of motion be adjourned until 10:15am on 4 August 1999.

5.      Sub paragraph 1(f) of the notice of motion be adjourned until 10:15am on 4 August 1999.

6.      Sub paragraphs 1(g) and (h) of the notice of motion be dismissed.

7.      Paragraph 2 of the notice of motion be adjourned until 10:15am on 4 August 1999.

8.      Paragraph 6 of the notice of motion be dismissed.

It should be noted that paragraphs 3 and 4 of the notice of motion were dealt with to finality on 15 March 1999.  Paragraph 5 of the notice of motion is a catch all paragraph which requires no response.  Paragraph 6 seeks the reservation of costs.  I do not see the necessity for any such order having regard to s347 of the Act but will hear submissions on that issue now should counsel so desire.  Otherwise I propose to order that paragraph 6 of the notice of motion be dismissed.

Associate:

Dated:              23 June 1999