FEDERAL COURT OF AUSTRALIA

Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd [2000] FCA 627

INDUSTRIAL LAW - dismissal of employee - whether for a prohibited reason - employee a delegate of an industrial association - dismissal following unauthorised absence from work and attendance at union meeting - application for interlocutory injunction - effect of reverse onus of proof - whether document initiating proceeding must allege particular reason for conduct -  whether serious question to be tried that employee’s position as delegate a reason for dismissal - whether prohibited reason limited to mere status of employee as delegate - balance of convenience - weight to be given to alleged loss of trust and confidence by employer in employee - whether appropriate to reinstate employee on interlocutory basis - dismissed employee not a party to proceeding

WORDS AND PHRASES - "application"

Federal Court of Australia Act 1976 (Cth) s 23

Workplace Relations Act 1996 (Cth) ss 298B, 298G, 298K, 298L, 298T, 298U, 298V

Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30, (1998) 195 CLR 1 followed

Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108, (1999) 91 FCR 463 referred to

Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd [2000] FCA 441 referred to

Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691 referred to

Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55 referred to

Lumley v Wagner (1852) DeGM&G 604, (1852) 42 ER 687 referred to

Warner Brothers Pictures, Incorporated v Nelson [1937] 1 KB 209 referred to

Hill v C A Parsons & Co Ltd [1972] Ch 305 referred to

Baker v Corporation of City of Salisbury (1982) 2 IR 168 referred to

National Union of Workers v Davids Distribution Pty Ltd [1998] FCA 1530 referred to

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 referred to

Australian Nursing Federation v Croft Health Care Vic Pty Ltd [2000] FCA 93 followed

Independent Education Union v Geelong Grammar School [2000] FCA 557 followed

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION v G & K O’CONNOR PTY LTD (ACN 005 934 029)

V 242 OF 2000

GRAY J

12 MAY 2000

MELBOURNE

THE COURT NOTES THAT the applicant by its counsel undertakes to the Court:

(a)    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 this interlocutory order or any continuation (with or without variation) thereof; and

(b)   to pay the compensation referred to in (a) to the person there referred to.

THE COURT ORDERS THAT:

1.                  If, within seven days, Peter Edward Voss state in writing to the respondent that he is willing:

(a)                to become an employee of the respondent pending the hearing and determination of this proceeding or further order; and

(b)               to accept the obligations attaching to him as such an employee,

the respondent, by itself, its servants and agents, thereafter until the hearing and determination of this proceeding or further order employ Peter Edward Voss on terms and conditions of employment no less favourable than those afforded to him immediately prior to the termination of his employment on 10 April 2000.

2.                  In the event that the Court makes a final order in this proceeding without ordering that Peter Edward Voss be reinstated in his employment with the respondent, unless the Court otherwise orders, the employment referred to in par 1 will cease and determine without further act by or on behalf of either the respondent or Peter Edward Voss.

3.                  Liberty is reserved to either party to apply on twenty-four hours notice in writing to the other party.

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

REASONS FOR JUDGMENT

The nature of the application

1                     This application for interlocutory relief pursuant to the Workplace Relations Act 1996 (Cth) (“the Act”) came before me as a matter of urgency on 2 May 2000.  I reserved my judgment, because the application raises issues of some difficulty. 

2                     The applicant is an organisation, registered pursuant to the Act.  It is the trade union for persons employed in the meat industry.  The respondent is a corporation which owns and operates an abattoir at Pakenham.  From late 1992 until 10 April 2000, the respondent employed Peter Edward Voss as a labourer, operating a device called the SES-Tec Computer, tagging beef bodies and doing some trimming of tails.  It is common ground between the parties that, on 10 April 2000, the respondent terminated the employment of Mr Voss. 

3                     At the outset of the hearing of the application for interlocutory relief, counsel for the applicant applied for leave to amend the application.  Counsel for the respondent did not oppose this course, so I granted leave.  The amended application is in the following form:

This Application is brought by the Applicant pursuant to the  s 298T of the Workplace Relations Act (Cth) 1996 (“the Act”).

A.     DETAILS OF CLAIM

On the grounds appearing in the accompanying Affidavit of Peter Voss the Applicant claims against the Respondent relief as follows:-

1.         A declaration that the Respondent has engaged in conduct in contravention of Section 298K of the Workplace Relations Act 1996 (“the Act”) in dismissing from his employment Peter Voss (“Voss”) who is a member and delegate of the Applicant.

2.         An order pursuant to s 298U(b) of the Act that the Respondent reinstate Voss to his employment.

3.         An order pursuant to s 298U(a) of the Act imposing on the Respondent a penalty by reason of the said contravention of Section 298K of the Act.

4.         An order pursuant to s 298U(c) of the Act that the Respondent pay Voss compensation in such amount as to the Court may seem appropriate.

5.         Pursuant section 356(b) of the Act - an order An order pursuant to section 356(b) of the Act that any penalty, or any part of a penalty, imposed on the Respondent for the said contravention of the Act be paid to the Applicant.

6.         Such further or other orders as to the Court may seem appropriate.

B.        CLAIM FOR INTERLOCUTORY RELIEF

AND the Applicant claims by way of interlocutory relief:

1.         An order that, until the hearing and determination of this proceeding or further order of the Court, the Respondent, by its officers, servants and agents, treat Voss as an employee of the Respondent entitled to terms and conditions of employment no less favourable than those which applied immediately prior to the termination of his employment.

2.         Such further or other order as may to the Court seem appropriate.

4                     Section 298K(1) of the Act provides relevantly as follows:

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)               dismiss an employee; ….

5                     Section 298L(1) provides that conduct referred to in s 298K(1) is for a prohibited reason if it is carried out because the employee concerned:

(a)               is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or

…

(m)             in the case of an employee or an independent contractor ¾ has absented himself or herself from work without leave if:

(i)                 the absence was for the purpose of carrying out duties or exercising rights as an officer of an industrial association; and

(ii)               the employee or independent contractor applied for leave

                                    before absenting himself or herself and leave was

                                    unreasonably refused or withheld; or

(n)               as an officer or member of an industrial association, has done, or

proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:

(i)                 lawful; and

(ii)               within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules.

6                     Section 298T provides relevantly as follows:

(1)       Subject to subsection (4), an application may be made to the Court for orders under section 298U in respect of conduct in contravention of this Part.

(2)       The application may be made by:

(a)               the person, referred to in the provision in question, against whom the conduct has been, is being or would be carried out; or

(b)               in the case of a contravention of this Part by virtue of the operation of section 298D, 298E or 298F ¾ an organisation of which the person is a member; or

(c)               in the case of a contravention of this Part by virtue of the operation of section 298G or 298H ¾ an industrial association of which the person is a member; or

(d)               the Employment Advocate; or

(e)               any other person prescribed by the regulations.

7                     By virtue of s 298G(1)(a), Pt XA of the Act (which includes the sections to which I have referred) applies to conduct by a constitutional corporation.  The term “constitutional corporation” is defined in s 4(1) of the Act, to include a body corporate that is, for the purposes of par 51(xx) of the Constitution, a trading corporation formed within the limits of the Commonwealth.  It appears that the respondent is such a corporation.  Accordingly,
s 298T(2)(c) applies, and the application in respect of the alleged conduct may be made by an industrial association of which the person against whom the conduct has been carried out is a member.  The term “industrial association” is defined, for the purposes of Pt XA, in
s 298B(1).  The definition includes an organisation, a term defined in s 4(1) as meaning an organisation registered under the Act.  The applicant is therefore competent to bring the proceeding, although the fact that it, and not Mr Voss, has applied gives rise to difficult issues, which I discuss later in these reasons for judgment. 

8                     Section 298U of the Act provides as follows:

In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:

(a)               an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than:

(i)                 in the case of a body corporate ¾ $10,000; or

(ii)               in any other case ¾ $2,000;

(b)               an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor;

(c)               an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate;

(d)               an order requiring the person or industrial association not to carry out a threat made by the person or association, or not to make any further threat;

(e)               injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects;

(f)                any other consequential orders.

9                     At first sight, it might appear that s 298U(e) empowers the Court to grant interlocutory orders to remedy the effects of alleged conduct in contravention of a provision of Pt XA.  This is not the case, however.  In Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30, (1998) 195 CLR 1, the High Court of Australia held that s 298U(e) only empowers this Court to make final orders to remedy the effects of conduct.  That is to say, this Court must have found that conduct in contravention of Pt XA of the Act has occurred, before it can exercise the power to make orders remedying the effects of such conduct.  Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ expressed this view at [26].  Gaudron J expressed the contrary opinion at [104] - [111].  Callinan J, at [180] - [181], declined to express a view.  In that case, the majority also held that s 298U did not constitute an exhaustive code of the available remedies in a proceeding in respect of conduct alleged to be in contravention of Pt XA.  Section 23 of the Federal Court of Australia Act 1976 (Cth) provides that:

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

The majority of the High Court of Australia recognised that this Court has power under s 23 to grant interlocutory orders in a case in which final relief is sought under s 298U of the Act.  See [27] - [30]. 

10                  The final provision of the Act relevant for present purposes is s 298V, which provides as follows:

If:

(a)               in an application under this Division relating to a person’s or an industrial association’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and

(b)               for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise.

11                  Counsel for both parties accepted that I should determine the application for interlocutory relief on the basis that, if the applicant has made out a serious question to be tried as to whether the applicant would be entitled to final relief, I should consider whether the balance of convenience favours the grant of interlocutory relief.

The facts

12                  It is not disputed that Mr Voss was a delegate of the applicant.  He was also an officer; that term is defined in s 298B(1) of the Act as including a delegate of an industrial association, which, as I have said, includes an organisation.  The evidence is that the previous “kill floor” delegate had resigned his employment with the respondent and that Mr Voss was elected as the “kill floor” delegate by vote of the relevant members of the applicant employed by the respondent in late February 2000.  According to Mr Voss’s affidavit, Colin Ross, the “shed” delegate, had informed the respondent’s management of the election of Mr Voss within a couple of days after it had occurred.  At least by the middle of March, Peter Roy Allen, the respondent’s Operations Manager, was aware that Mr Voss was a delegate.

13                  The committee of management of the Victorian Branch of the applicant is constituted by elected representatives from each of the major metropolitan and non-metropolitan meatworks, plus “geographic” and “industry sector” representatives.  The committee of management has a longstanding practice of permitting delegates who are not members of it to observe its proceedings.  There are usually more than twenty observers admitted to a meeting.  Often they are delegates from large meatworks, including the respondent’s meatworks at Pakenham. 

14                  Prior to March 1999, the respondent had an agreement with the applicant as to the attendance of delegates at meetings of the committee of management.  It was agreed that the senior delegate was permitted to attend meetings of the committee of management and that the senior delegate would notify the respondent prior to attending such meetings.  The senior delegate could also request permission for one extra person to attend committee of management meetings.  According to Mr Voss’s affidavit, two delegates usually attended.  The extra person was ordinarily either the “boning room” delegate or the “kill floor” delegate.

15                  From March 1999 until August 1999, there was significant industrial disputation between the respondent and the applicant, with respect to negotiation of a certified agreement to replace an agreement made in 1995, certification of which was set aside by order of the Australian Industrial Relations Commission on 26 July 1999.  From March to August 1999, the respondent locked out its workforce.  On 3 June 1999, the respondent joined the National Meat Association and thereby became bound by the Federal Meat Industry Processing Award 1997 (“the award”).  In August 1999, the respondent withdrew its lockout and terminated the relevant bargaining period under Pt VIB of the Act.  It notified its employees that it was seeking to enter into Australian Workplace Agreements under Pt VID of the Act.  It gave fresh notices and locked out each of its employees until he or she agreed to sign an Australian Workplace Agreement in the form chosen by the respondent.  On 27 September 1999, the applicant instituted proceedings in the Australian Industrial Relations Commission.  On 17 November 1999, the Commission ordered the respondent to cease its lockout.

16                  Once work resumed in November 1999, the respondent took the view that attendance of delegates at committee of management meetings was to be governed by cl 53 of the award, which provided as follows:

53.       SHOP STEWARDS

53.1     Leave of absence from work to attend any union business shall be allowed by the employer to any employee member of the claimant union named by such union provided fair and reasonable notice is given to the employer.

53.2     Provided that such leave shall be restricted to one employee at a time in the employment of any one employer and such employee shall not be entitled to payment for the time so absent from work.

17                  On 9 December 1999, Colin Ross, the senior delegate, and Chris Symons, another delegate, were absent from work attending a committee of management meeting.  Neither gave prior notification to the respondent.  On 18 January 2000, Mr Allen gave Mr Ross and Mr Symons formal warnings in relation to their failure to give notice and the absence of more than one delegate to attend the committee of management meeting. 

18                  A meeting of the committee of management was scheduled for 30 and 31 March 2000.  Mr Ross gave Mr Allen notification of his intention to attend.  Mr Allen told him that only one delegate from the respondent’s works was allowed to attend under cl 53 of the Award.  According to Mr Voss’s affidavit, in early March, he learned from Mr Ross and another delegate of the committee of management meeting scheduled for 30 and 31 March.  Mr Ross and the other delegate told him that the company allowed only one person to go to the meeting.  They made it clear to him that if he wanted to go it was his own decision.  Mr Voss’s affidavit says:

I did not regard it as a big deal.  My impression was that it might be useful for me to understand how the Committee of Management operated but it was not important to me and I didn’t really think about it.  I decided I would go to work rather than the Committee of Management meeting.

19                  Mr Voss has suffered from a recurring back injury related to his work.  In December 1999, he notified WorkCover of his injury.  Between December 1999 and 10 April 2000, he was absent from work for four or five days because of the injury.  He claimed compensation from WorkCover for two or three of these days and took the other two days as sick leave.  He has received medical treatment for the injury and has consulted a physiotherapist. 

20                  On 30 March 2000, Mr Voss was absent from work.  He attended the committee of management meeting on that day.  He did not notify the respondent that he intended to do so.  Mr Ross also attended the committee of management meeting.  According to Mr Voss’s affidavit, he awoke on the morning of 30 March with his back so sore that he was unable to work.  He telephoned the respondent’s security gate at approximately 5.00 am and left a message that his back was playing up, in accordance with the usual procedure for notification of absence because of illness or injury.  Later on the morning of that day, Mr Voss decided that, as he could not work, he might as well go to the committee of management meeting.  He drove from his home at Kilcunda to Pakenham Station and took the train to Melbourne.  He alternated sitting and standing on the train because of his back injury.  There were sufficient breaks in the meeting for him to rest his back by standing, so that sitting at the meeting did not affect it adversely.  The meeting finished at about 3.00 pm and he went home.

21                  On 31 March, Mr Voss went to work as usual and performed his normal duties, although his back was still sore.  On the same day, he went to his physiotherapist for a visit arranged prior to 30 March.  He told the physiotherapist that he had been off work the previous day because of his back and asked for a certificate.  The physiotherapist examined him and asked him various questions about the condition of his back on the previous day.  The physiotherapist gave Mr Voss a certificate for absence on 30 March.

22                  On 3 April, Mr Voss was absent from work because of a need to have some dental work performed.  As a result of this work, he was absent from work for the rest of that week.

23                  On Wednesday 5 April 2000, Mr Allen had a conversation with Mr Ross, in the course of which Mr Ross informed him that Mr Voss had attended the committee of management meeting on 30 March.  Mr Allen then spoke to Kevin O’Connor, the managing director of the respondent.  They reached the conclusion that Mr Voss had engaged in misconduct.  They believed that he had fabricated the reason for his absence from work so as to be able to attend the committee of management meeting. 

24                  On 10 April 2000, there was a meeting in Mr Allen’s office.  Mr Allen and Matt O’Connor represented management.  Mr Ross and Mr Voss were summoned.  In the course of the meeting, Mr Allen accused Mr Voss of having deceived the respondent in order to attend the committee of management meeting.  Mr Voss protested that he had been absent from work because of his back.  He produced the certificate from his physiotherapist, which Mr Allen refused to accept because it was backdated.  There was some discussion, involving Mr Ross, about whether Mr Voss had attended the committee of management meeting in his official capacity or simply as a member of the union.  Mr Allen made reference to cl 53 of the award.  There was discussion of the warnings given to Mr Ross and Mr Symons in January.

25                  In some respects, there are differences between the account in the affidavit of Mr Voss and the account in the affidavit of Mr Allen as to what occurred at the meeting.  For the most part, these differences are not important for present purposes.  There is, however, one important issue.  Mr Voss’s version of the meeting tends to suggest that he was dismissed at the end of it.  Mr Allen’s account, however, is clear that he told Mr Voss at the outset that his employment had been terminated in accordance with cl 23.5 of the award on the basis of gross misconduct.

A serious question to be tried

26                  In determining whether there is a serious question to be tried whether Mr Voss was dismissed in contravention of s 298K(1)(a) of the Act, the possible role of s 298V is of some significance.  The latter section has the effect of reversing the onus of proof in relation to allegations that conduct was carried out for a particular alleged reason.  In Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108, (1999) 91 FCR 463, the Full Court provided helpful guidance on the effect of s 298V in relation to applications for interlocutory relief.  At [110], Wilcox and Cooper JJ said:

Where there is an application for interim relief in proceedings under the Division, the onus remains upon the applicant to demonstrate that there is a serious question to be tried that the dismissal occurred for a prohibited reason.  If a serious question to be tried is made out in respect of the other ingredients of the alleged contravention, s 298V operates to establish there is a serious question to be tried that the dismissal was for a prohibited reason.  It remains available to the employer to demonstrate at the interlocutory stage that the reason for the dismissal was other than for a prohibited reason.  The weight of that evidence may be such as to persuade the court there is no serious question to be tried.

27                  In the present case, counsel for the respondent argued that s 298V had no operation in relation to the claim for interlocutory relief.  He drew attention to the form of the amended application, and to the absence from it of a specific reference to any particular reason.  Although reference is made in par 1 of the details of claim in the amended application to the fact that Mr Voss is a member and delegate of the applicant, the document contains no specific allegation that either of these circumstances was a particular reason for the respondent’s conduct in dismissing Mr Voss.

28                  Counsel for the respondent argued that the words “an application” in s 298V refer to the document filed in the Court to initiate a proceeding in respect of an alleged contravention.  The word “application” does not appear to be defined anywhere in the Act.  The manner in which it is used in s 298T suggests that it means the proceeding itself, rather than the document that initiates the proceeding.  Construing the word in the same way in s 298V would not only produce consistency between provisions of the same division of the Act, it would produce a sensible result.  There would be absurdity in construing s 298V to operate, or not operate, according to the terms of the document initiating the proceeding.  It would be possible to bring into play the provision reversing the onus of proof by, for instance, amending the initiating document.  The manifest purpose of s 298V, to cast onto the person whose state of mind is in issue the onus of proof with respect to that state of mind, would not be advanced by a narrow, technical construction.  I am therefore of the view that s 298V operates to cast the onus of proof on the respondent when, in the course of a proceeding in which contravention of Pt XA is alleged, there is an allegation that conduct was carried out for a particular reason.

29                  In the present case, it is clear from both the initiating document in its original form, and that document in its amended form, that an allegation was made that the respondent had engaged in conduct in contravention of s 298K of the Act in dismissing Mr Voss.  That amounts to an allegation that the respondent had dismissed Mr Voss for a prohibited reason.  Attention was directed specifically to the fact that Mr Voss is both a member and a delegate of the applicant.  The respondent was in no doubt as to what was alleged against it.  In his affidavit, Mr Allen said:

Voss was not dismissed because he was a member or delegate of an industrial organisation, that being the Australian Meat Industry Employees Union (“AMIEU”).  I deny any suggestion that his membership or position as a delegate of the AMIEU was a reason for his dismissal.”

In his opening, counsel for the applicant made it clear that the particular reason alleged against the respondent was that Mr Voss was a delegate of the applicant.  It was thereby alleged, in the proceeding, which is an application under Pt XA, that the respondent’s conduct in dismissing Mr Voss was carried out for a particular reason, namely that Mr Voss was a delegate of the applicant.  Section 298V therefore provides assistance to the applicant in establishing that there is a serious question to be tried.

30                  Given that it is common ground that Mr Voss was a delegate of the applicant and that he was dismissed from his employment, the effect of s 298V is that it is to be presumed that the respondent dismissed him for that reason, even if there were other reasons as well.  Only if the respondent could persuade the Court otherwise at the interlocutory stage would it avoid a finding that there is a serious question to be tried.

31                  The respondent has endeavoured to do this.  I have quoted the express denial from Mr Allen’s affidavit.  That is not the end of the matter.  It is not clear from Mr Allen’s affidavit that he was the person who made the decision to dismiss Mr Voss.  Relevantly, his affidavit is in the following terms:

After speaking to Ross, I then spoke to O’Connor about Voss’ [sic] conduct in attending the committee of management meeting whilst purportedly unwell on 30 March 2000.  I discussed with O’Connor the nature of the conduct and we agreed that on the information in our possession at that time, Voss had engaged in misconduct.  We believed that Voss had fabricated the reason for his absence so as to be able to attend the committee of management meeting.  It was my belief that Voss knew that he would not be permitted to attend if he requested to do so.

The affidavit is silent as to whether Kevin O’Connor, Mr Allen, both of them, or some other person, made the decision to dismiss.  The passage which I have quoted earlier, which contains the denial, does not shed any light on this.  If Mr Allen were the sole decision-maker, he could have sworn as to his own state of mind.  He could have given evidence on affidavit, for the purposes of an interlocutory proceeding, on information and belief as to the state of Mr O’Connor’s mind, or of any other relevant person’s mind.  He did not do this. 

32                  In any event, there are circumstances suggesting that, after cross-examination at a trial, there is a real chance of a finding of fact that one of the reasons for the dismissal of Mr Voss was that he was a delegate of the applicant.  It may be true that the respondent employs a number of members of the applicant.  It certainly has in its employ delegates of the applicant other than Mr Voss.  As far as the evidence goes, there has been no attempt by the respondent to dismiss those other delegates.  The respondent would no doubt be aware that any attempt to rid itself of union delegates and members would bring it into conflict with the law.  It is nonetheless possible that an employer in the respondent’s position, presented with what it saw as an opportunity to assert itself by ousting one delegate, would do so. 

33                  There is evidence that, in recent times, the respondent’s attitude to the applicant has hardened.  As I have said, for a lengthy period the respondent locked out its employees.  It offered them a return to work only upon terms that they entered into individual agreements in a form chosen by the respondent.  This suggests an abandonment of the respondent’s previous practice of dealing with the applicant in negotiating terms and conditions of employment for its employees.  In conjunction with this, on its own evidence, the respondent adopted a harder line in relation to the attendance of delegates at committee of management meetings than it had previously adopted.  It is true that the award provided for the attendance of only one delegate at such meetings.  The award did not prevent the respondent granting permission to more than one delegate to attend a committee of management meeting, as it had done in the past.

34                  I must also have regard to the manner in which the dismissal of Mr Voss was carried out.  Although this was the first occasion on which he had, as the respondent saw things, absented himself from work in order to attend a committee of management meeting, and although he was only a recently appointed delegate, the respondent chose not to give him a warning.  It had previously given other delegates warnings in respect of similar conduct.  On Mr Allen’s evidence, he and Kevin O’Connor reached the conclusion that Mr Voss had deceived the respondent about his state of health, for the purpose of attending the committee of management meeting, prior to 10 April.  They reached that conclusion after what was plainly an inadequate investigation.  In particular, they gave Mr Voss no opportunity to contradict the information and the assumptions on which they relied, before reaching the conclusion.  In the meeting on 10 April, Mr Allen adhered to this conclusion, although Mr Voss provided information which, if accepted, would have contradicted the conclusion. 

35                  The hardening attitude of the respondent towards the applicant, and the determination to dismiss Mr Voss without proper investigation of his conduct, give rise to a suspicion that the respondent might have been seizing an opportunity to dismiss Mr Voss because he was a delegate of the applicant and it did not want him to be a delegate of the applicant.  These circumstances give rise to a serious question to be tried as to whether the respondent dismissed Mr Voss for the reason that he was a delegate.  They would give rise to such a question even if the applicant were not able to avail itself of the provision relating to onus of proof in s 298V.

36                  As counsel for the respondent argued, the applicant could not assert that Mr Voss had been dismissed for either of the prohibited reasons referred to in s 298L(1)(m) or (n).  In the case of (m), it is clear that Mr Voss had not applied for leave before absenting himself from work, and no issue of whether leave was unreasonably refused or withheld arose.  In the case of (n), the applicant did not allege that what Mr Voss did in attending the committee of management meeting was within the limits of an authority expressly conferred on him by the applicant under its rules.

37                  It is clear that the prohibited reason that a person is a delegate of an industrial association, specified in s 298L(1)(a), is not confined to the mere status of the person concerned as a delegate.  A dismissal of a delegate may be for that prohibited reason if the employer was motivated by dislike of the manner in which the delegate has performed duties as delegate, or of activities carried out by that delegate which have added significance because they are carried out by a delegate.  The issue is discussed at length by Merkel J in Australian Municipal, Administrative, Clerical & Services Union v Ansett Australia Ltd [2000] FCA 441, at [63] - [78], where his Honour followed the decision of the High Court of Australia in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605.  Conduct of an employer may also be for the prohibited reason that the employee concerned was a delegate if, for instance, a reason for the dismissal of a delegate was that the employer did not want that particular person to be a delegate.  The employer might be prepared to live with delegates generally, or with another delegate, but might be concerned that a particular person has been chosen to represent the interests of its employees.  In the circumstances of the present case, the fact that the acts of Mr Voss cannot give rise to allegations that the respondent dismissed him for the prohibited reasons in s 298L(1)(m) and (n) does not mean that the allegation that it dismissed him for the prohibited reason in s 298L(1)(a) is unsustainable.

38                  I am satisfied that the applicant has made out a serious question to be tried as to whether the respondent dismissed Mr Voss from his employment by reason of the fact that he was a delegate of the applicant.

Balance of convenience

39                  On the balance of convenience, there is not a great deal of material.  Mr Voss has sworn that he is the main breadwinner for himself and his wife; their children are independent.  His wife has a part-time job, the income from which varies from $80.00 to $300.00 per week.  Their savings were reduced substantially during the lockout in 1999 and have not recovered.  His wife’s income is insufficient for the couple’s living expenses.  Mr Voss expects that any unemployment benefits he receives will be reduced to the extent of his wife’s income. 

40                  There is no evidence that the respondent would have any difficulty fitting Mr Voss back into its workforce.  It does not assert that it would.  There is no evidence of the size or the manner of organisation of the workforce at the respondent’s works.  There is in evidence a page from the attendance book maintained by the respondent, relating to 30 March, the day on which Mr Voss was absent and on which he attended the committee of management meeting.  This page indicates that, on that day, eight others contacted the respondent to signify that they would not be attending for work and three more indicated that they would be starting late.  If the respondent has enough workers, and enough flexibility, to cope with this number of absentees, it should have little difficulty in fitting Mr Voss back into its workforce.

41                  The only factor expressly relied upon by the respondent in relation to the balance of convenience is that it says there is no longer a relationship of trust and confidence between the respondent and Mr Voss.  Mr Allen’s affidavit asserts that the respondent believes that Mr Voss intentionally lied about why he could not attend work on 30 March and does not believe that the relationship of employer and employee can be recommenced successfully because of this breakdown of trust.  I do not attach great weight to this factor.  It is unclear from Mr Allen’s affidavit whether the state of mind he attributes to the respondent is the state of mind of Mr Allen alone, of Mr Allen and Kevin O’Connor, or of any other manager or supervisor.

42                  The law relating to the need for trust and confidence in an employment relationship was developed at a time when employment invariably involved a close personal relationship between employer and employee.  The advent of corporate employers has diminished the importance of this element of the employment relationship.  A corporation has no sensitivity.  The crucial question must be what effect, if any, loss of trust by a manager in an employee is likely to have on the operation of the workplace concerned.  It might be more significant, for instance, to know the name of Mr Voss’s immediate supervisor and to know the attitude of that person towards him.  If the immediate supervisor had no trust in Mr Voss, it might also be relevant to know whether it would be possible to place Mr Voss in another part of the workplace, under another supervisor, who did have such trust.  It would also be relevant to know what effect any lack of trust by any manager or supervisor in a particular employee might have on the conduct of operations in the workplace.  There is no evidence as to any of these matters.

43                  Resort to an assertion that trust and confidence in a particular person have been lost cannot be a magic formula for resisting the compulsory reinstatement in employment of the particular person.  The circumstances of this case provide a good example.  As the evidence stands, Mr Allen and Kevin O’Connor came to their conclusion that Mr Voss had deceived the respondent without making proper inquiry into the circumstances of his absence and his attendance at the committee of management meeting.  In particular, they reached this conclusion without having made any inquiry of Mr Voss himself, to ascertain what information he might have been able to give to enable a judgment to be formed about the significance of those events.  Once that conclusion was formed, it appears that Mr Allen has adhered to it as if it were an absolute truth.  The discussions at the meeting of 10 April do not appear to have caused him to waver in his belief.  Perhaps more surprisingly, the evidence by way of affidavit of Mr Voss does not appear to have caused Mr Allen even to have had doubts about whether he might have mischaracterised Mr Voss’s conduct.  I am not suggesting that Mr Allen was bound to accept all that Mr Voss said in the meeting of 10 April, or all that he said in an affidavit.  A rational person would have been forced to concede that there might have been another side to the story and that a firm conviction that Mr Voss had deceived the respondent might be unwarranted at this stage.  Blind adherence to a belief formed on inadequate material, in the face of other evidence, does not justify being regarded as a weighty factor in assessing the balance of convenience.

44                  The balance of convenience favours the conclusion that, if possible, Mr Voss should return to his employment with the respondent pending the hearing and determination of this proceeding.

Should an injunction be granted?

45                  Such a finding does not lead automatically to the conclusion that an injunction should be granted.  The grant of any injunction is a matter of discretion.  The notion that someone should be reinstated in employment on a temporary basis gives rise to some difficulties.

46                  In the past, courts have tended to refrain from using the remedy of injunction to require one person to enter into, or to continue, an employment relationship with another.  This reluctance might stem from the presence of a supposed rule that courts will not grant specific performance of contracts of employment, a rule which has proved less than absolute.  There has been some readiness to grant injunctions restraining the taking of industrial action, the effect of which is to force those taking the industrial action to resume work.  See, for instance, Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691 and Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55.  Courts have indirectly enjoined employees to continue working for particular employers by granting injunctions to enforce obligations of those employees to refrain from working for anybody else.  See Lumley v Wagner (1852) DeGM&G 604, (1852) 42 ER 687 and Warner Brothers Pictures, Incorporated v Nelson [1937] 1 KB 209.  In some circumstances, courts have been ready to grant injunctions preserving employment relationships.  An employer might be ordered to refrain from treating a particular act as having brought about the termination of a contract of employment.  See, for instance, Hill v C A Parsons & Co Ltd [1972] Ch 305.  Another example of such an injunction, granted on an interlocutory basis, is Baker v Corporation of City of Salisbury (1982) 2 IR 168.

47                  In cases like Hill and Baker, the obligations of the employer and the employee, upon which their continuing relationship depends, are not dictated by the injunction itself.  They continue to be governed by the contract of employment and by rules of law from other sources, bearing on the employment relationship.  Thus, an employer enjoined to refrain from treating a purported act of dismissal as terminating the contract of employment remains free to dismiss the employee concerned, if the occasion arises, by whatever lawful means are open.  The employer and the employee concerned remain free to manage their relationship in the normal way, and free to vary it if they see fit.  The relationship remains a consensual one, the only compulsion being against viewing it as having been terminated by a particular past act.

48                  In recent times, there has been a significant development in cases involving alleged contraventions by employers of s 298K of the Act.  In several cases, injunctions have been granted which have the effect of reinstating employees in their employment, pending the hearing and determination of the proceedings concerned.

49                  The first of these cases was National Union of Workers v Davids Distribution Pty Ltd [1998] FCA 1530.  In that case, following the taking of industrial action, an employer purported to terminate the employment of fifty-two employees who were involved in a picket.  North J granted interlocutory relief, including an order in the following terms:

Until further order, the respondent, Davids Distribution Pty Ltd by itself, its servants and agents, treat all persons named in the schedule to this order as employees of the respondent with continuity of service save and except for the purpose of payment of wages; ….

His Honour also restrained the employer from terminating the employment of each of those employees and of another employee.  The Full Court dismissed an appeal from these orders.  See Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108, (1999) 91 FCR 463.  Counsel for the applicant in the present case stated that the interlocutory injunction sought in par 1 of the claim for interlocutory relief in the amended application was modelled on the order granted in Davids.

50                  There is one significant difference between the facts in Davids and the facts in the present case.  In Davids, there was an issue as to whether the purported dismissals of the fifty-two employees had been effective to terminate their employment.  It is possible that, in ordering the employer to treat the fifty-two employees as employees, North J was endeavouring to ensure that this issue was not foreclosed until the proceeding was determined.  In other words, it is possible that the injunction was in the same category as those granted in Hill and Baker.  I note that his Honour enjoined the employer from terminating the employment of those persons.  This supports the proposition that there was a real issue as to the effectiveness of the previous purported dismissals.  It is, however, significant that, at least in one respect, the obligations of the employer with respect to the fifty-two persons flowed from the injunction and not from the contract of employment or from any other statutory or legal incident attached to the employment relationship.  The employer was obliged to treat the fifty-two persons as employees; it was not free to dismiss them without further order of the court.

51                  In the present case, it is common ground that Mr Voss was dismissed.  There is no live issue as to whether the act done by the respondent for the purpose of terminating Mr Voss’s contract of employment was effective or otherwise.  Indeed, the very complaint which the applicant makes is that the conduct of the respondent amounted to a dismissal of Mr Voss.  In such a context, an order modelled on that made in Davids would give rise to ambiguity.  It is not clear to me what would be achieved by an order directing the respondent to treat Mr Voss as an employee of the respondent.  Would this mean that he became an employee, his previous employment having ceased?  Or would it mean that he did not become an employee, but was to be treated as if he did become one?  On either view, problems might arise.  If the effect of the injunction were that Mr Voss did not become an employee, but that the respondent was obliged to treat him as if he were, the mutual obligations which characterise an employment relationship would not exist in a legal sense.  For instance, Mr Voss would not be required to obey all lawful and reasonable instructions of the respondent, as an employee is normally obliged to do.  Nor would Mr Voss have all of the normal protections available to him.  Whilst there might be no difficulty about the respondent owing a duty of care to Mr Voss as a person working at its premises (as to which see Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16), there might be other duties which, if the respondent failed to perform them, Mr Voss would have no right to enforce.  If Mr Voss were to suffer injury (such as an aggravation of the existing injury to his back) in the course of his work, WorkCover might decline to compensate him on the basis that he was not an employee, but merely a person whom the respondent was obliged by an order of the Court to treat as an employee.  It would clearly be unsatisfactory to place someone into a newly-created relationship of this kind, as distinct from using orders of the kinds made in Davids to preserve a pre-existing relationship as to the termination of which there was doubt.

52                  On the other hand, if the order in the present case were to be construed as an order reinstating Mr Voss as an employee of the respondent, other problems might arise.  The most obvious one is that, if the applicant were to be unsuccessful in its claim for final relief in this proceeding, the employment relationship between Mr Voss and the respondent, having been revived, would still be in existence.  It might turn out that, although victorious in the proceeding, the respondent could not prevent Mr Voss from continuing to be its employee without dismissing him again.  The further dismissal might itself give rise to allegations that it was unlawful, or might be susceptible of a remedy pursuant to Div 3 of Pt VIA of the Act.

53                  These considerations tend against making an order of the kind sought by the applicant in the present case.  There is, however, authority tending in favour of making such an order.  In Australian Nursing Federation v Croft Health Care Vic Pty Ltd [2000] FCA 93, Heerey J made an order in the following terms:

Pending the hearing and determination of the matter or further order, the respondents reinstate the second, third, fourth, fifth and sixth applicants …. to their employment, being employment undertaken by them immediately prior to 27 January 2000 in respect of the second to fifth applicants and prior to 7 December 1999 in respect of the sixth applicant.

In that case, the relevant applicants were employees who had been dismissed, allegedly for one or more prohibited reasons of the kinds referred to in s 298L(1) of the Act.  Heerey J’s order unambiguously put them back in their employment.  His Honour did not discuss what might be the fate of that employment if final relief were not granted in that proceeding.

54                  In Independent Education Union v Geelong Grammar School [2000] FCA 557, Finkelstein J restrained an employer from acting upon a notice terminating the employment of one of its teachers.  Despite the form of the order, it is clear from his Honour’s reasons for judgment that the teacher’s employment had been brought to an end.  His Honour saw the issue in terms of reinstatement on a temporary basis.

55                  It therefore appears that this Court has no reluctance to use the remedy of injunction as a means of reinstating, on an interlocutory basis, employees who have been dismissed in circumstances giving rise to a serious question as to whether they will be entitled to be reinstated in due course.  So far, the Court does not appear to have adverted to possible difficulties attending the creation of a new relationship of employer and employee by means of an injunction.  Once some of these difficulties are appreciated, an order can be framed in terms that will at least alleviate them.  An express reservation of liberty to apply will enable an employer to return to the Court if, for instance, the employer desires to dismiss the employee afresh for reasons that are totally unconnected with the subject matter of the current proceeding.  The problem of termination in the event that final relief is not granted could be resolved by providing in the order that the artificially created employment relationship is to cease, in the absence of further order (such as a stay pending appeal) if final relief is not to be granted. 

56                  One further issue arises in the present case.  In each of Croft Health Care and Geelong Grammar School, the persons reinstated by injunction pending determination of the relevant proceedings were parties to the proceedings.  They were themselves seeking the orders which were made.  It could be assumed that they were therefore willing to enter into employment relationships with their former employers and to abide by the obligations placed on them by and in relation to those relationships.  In the present case, Mr Voss is not a party to the proceeding.  The orders which are sought are sought by his union, the only applicant.  Although Mr Voss has sworn an affidavit, in which he says that he is “very upset and concerned about being terminated”, he nowhere says that he wishes to be reinstated, either as a matter of final relief or on an interlocutory basis.  He nowhere says that he is prepared to enter into a fresh employment relationship with the respondent, or that he is prepared to accept the obligations cast on him by and in the course of that relationship.  In Davids, the fifty-two employees in respect of whom the injunction was granted were not parties to the proceeding.  It seems to have been assumed that they would be willing to return to their employment.  I do not think that I should make that assumption in the present case.  Rather, any order should be conditional upon Mr Voss indicating to the respondent in writing that he is willing to become its employee again, and to undertake his normal obligations as an employee.

57                  The applicant by its counsel has given an undertaking in damages in the usual form.  This will safeguard the respondent in the event that the applicant fails in its claim for final relief and the respondent suffers any damage.  It may be that it will be difficult to determine what, if any, damage the respondent will have suffered if that should occur.  In the ordinary course, the respondent will have had the benefit of the labour of Mr Voss, in return for paying him normal remuneration.  Any difficulty involved in such a calculation is not a heavy deterrent to the granting of an injunction.

58                  In all of the circumstances, I am of the view that I should grant an injunction.  It will not be in the terms sought by the applicant but will be framed in an endeavour to overcome some of the difficulties I have identified with the form of order proposed.  In particular, it will be framed so as to make it clear that the relationship forced upon the respondent is a relationship of employer and employee with Mr Voss.  Should this give rise to any difficulty, either party will be able to exercise liberty to apply.  Mr Voss will be disadvantaged in this respect, as he is not a party to the proceeding.  That deficiency could yet be overcome. 

59                  The orders I will make will note the applicant’s undertaking in damages and provide as follows:

1.      If, within seven days, Peter Edward Voss state in writing to the respondent that he is willing:

(a)  to become an employee of the respondent pending the hearing and determination of this proceeding or further order; and

(b)  to accept the obligations attaching to him as such an employee,

the respondent, by itself, its servants and agents, thereafter until the hearing and determination of this proceeding or further order employ Peter Edward Voss on terms and conditions of employment no less favourable than those afforded to him immediately prior to the termination of his employment on 10 April 2000.

2.      In the event that the Court makes a final order in this proceeding without ordering that Peter Edward Voss be reinstated in his employment with the respondent, unless the Court otherwise orders, the employment referred to in par 1 will cease and determine without further act by or on behalf of either the respondent or Peter Edward Voss.

3.      Liberty is reserved to either party to apply on twenty-four hours notice in writing to the other party.

Associate:

Dated: