FEDERAL COURT OF AUSTRALIA

McCann v Mt Isa Mines Limited [2003] FCA 1031

INDUSTRIAL LAW – Industrial relations – 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 – whether serious question to be tried – balance of convenience – whether an application had already been made for a remedy in respect of the dismissal under a law of the State – whether application competent

Workplace Relations Act 1996 (Cth) Part XA,ss 298K, 298L, 298T, 298U, 298V

Judiciary Act 1903 (Cth) s 39A(1)

Workplace Relations Legislation Amendment (Registration and Accountability Organisations) (Consequential Provisions) Act 2002 (Cth) Schedule 1, Items 1 and 15

Industrial Relations Act 1999 (Qld) ss 710, 727

Corporations Act 2001 (Cth)

Acts  Interpretation Act (Qld) s 7

Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia

(1998) 195 CLR 1 followed

Davids Distribution v NUW (1999) 1 FCR 463 followed

Australian Meat Industry Employees Union v G. and K. O’Connor Pty Ltd [2000] FCA 627 cited

National Union of Workers v Davids Distribution Pty Ltd [1998] FCA 130 cited

Wheeler v Phillip Morris Limited (19 ) 97 ALR 282 cited

MUA v CSL Australia Pty Ltd (2002) 113 IR 620 326 cited

HSUA v Tasmania (1996) 73 IR 140 cited

AMACSU v Ansett (2000) 175 ALR 173 mentioned

GMH v Bowling (1976) 12 ALR 605 referred to

Lewis v Qantas Airways Ltd (1981) 54 FLR 101 referred to

FSU v ANZ Banking Group (2002) 114 IR 352 referred to

BRIAN EDWARD McCANN and AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION and AUTOMOTIVE, FOOD, METALS, EGINEERING, PRINTING AND KINDRED INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND v MT ISA MINES LIMITED ACN 009 661 447

No Q 129 of 2003

SPENDER J

BRISBANE

19 SEPTEMBER 2003

THE COURT ORDERS THAT:

1.                  There be no orders for interlocutory relief.

2.                  The application be adjourned generally, with liberty to apply on three working days notice.

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

REASONS FOR JUDGMENT

1                     By an application filed on 4 September 2003, Brian Edward McCann, the Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union (“the AMWU”) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industrial Union of Employees Queensland (“the AMWUQ”) brought an application against Mount Isa Mines Limited (“Mt Isa Mines”) under s 298T of the Workplace Relations Act 1996 (Cth)(“the Act”) and s 39(1)(A)(c) of the Judiciary Act 1903 (Cth) in relation to claimed contraventions of s 298K of the Act. 

2                     The details of the claim in the principal proceedings and the claims for interlocutory relief are set out as follows:

‘A. DETAILS OF THE CLAIM

1.        On the grounds stated in the accompanying Affidavits, the First, Second and Third Applicants (“the Applicants”) claim a Declaration (“the Declaration”) that the Respondent has engaged in conduct in contravention of Section 298K of the Act, namely that the Respondent has:

(a)     dismissed and/or threatened to dismiss the First Applicant; and/or

(b)     injured or threatened to injure the First Applicant in his employment with the Respondent; and/or

(c)     altered or threatened to alter the position of the First Applicant to his prejudice,

         for a prohibited reason or reasons which include the prohibited reason that the First Applicant is and was at all material times:

(i)            a delegate of an industrial association, namely, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Federal Union”) and, or in the alternative, the Automotive, Metals, Engineering, Printing and Kindred Industrial Union of Employees, Queensland (“the State Union”); or, in the alternative

(ii)          a member of an industrial association, namely, the Federal Union and, or in the alternative, the State Union that is seeking better industrial conditions and is dissatisfied with his conditions.

2.        A Declaration that the purported termination of the employment of the First Applicant was and is invalid, ineffective and of no force and effect.

3.        An order pursuant to s.298U(b) requiring the Respondent to reinstate the First Applicant.

4.        An order pursuant to s.298U(c) requiring the Respondent to pay to the First Applicant compensation of such amount as the Court thinks appropriate.

5.        An order imposing a penalty or penalties pursuant to s.198U of the Act upon the Respondent in respect of the conduct referred to in the Declaration.

6.        An injunction pursuant to s.198U(e) of the Act requiring the Respondent not to contravene s.298K of the Act.

7.        Any further or other Orders that the Court deems fit.

            B. CLAIMS FOR INTERLOCUTORY RELIEF

            And the Applicants claim by way of interlocutory relief:

     1.    An Order that until hearing or determination of this Application or further Order, the Respondent by itself, its servants or agents, treat as invalid and of no force and effect its purported termination of employment of the First Applicant on 26 August 2003;

2.    An order that until hearing or determination of this Application or further Order, the Respondent, by itself, its servants or agents, reinstate the First Applicant to the position in which he was employed with the Respondent as at 26 August 2003 on the same terms and conditions as applied at that date.

3.    An Order that until hearing or determination of this Application or further Order, the Respondent, by itself, its servants or agents, be restrained from terminating the contract of employment between itself and the First Applicant without giving the First Applicant fourteen (14) days written notice of that intention and the reason for the proposed termination;

4.    An Order that the Respondent pay to the First Applicant those monies due and owing to him by way of wages in respect of the period from 26 August 2003 and the date of this Order;

5.    Any further Order or Orders as the Court deems fit.’

3                     There is power in the Federal Court to grant interim relief of the kind sought in the present application, although I will say something shortly as to the form of the orders which might have been made. 

4                     In Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ, said at par 27 that:

‘Once the jurisdiction conferred on the Federal Court by the Act is invoked, that Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) to make “orders of such kinds, including interlocutory orders … as the Court thinks appropriate”.  That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s 23 power to the Court in that class of proceeding.  It cannot be invoked to grant an injunction where the Court acquires its jurisdiction under a statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction (Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 425-426, 456.  But this is not such a case.’

5                     Wilcox and Cooper JJ, in Davids Distribution v NUW (1999) 91 FCR 463, (“Davids”) commented at par 36 on the above passage that:

‘In using the words “this is not such a case”, their Honours were referring to a case in which the Federal Court had been asked to restrain a threatened breach of s 298K by employers.  They held, in effect, that par (e) of s 298U of the Workplace Relations Act did not exclude the general powers conferred on the Court by s 23 of the Federal Court of Australia Act.  As North J pointed out, parity of reasoning must lead to the same conclusion about the argument that s 298U(b) provides an exclusive code of remedies.’

6                     As to the form of the order which might be made where orders in the nature of what might be referred to in a shorthand way as interlocutory reinstatement orders, Gray J was concerned with such an application in Australian Meat Industry Employees Union v G. and K. O’Connor Proprietary Limited [2000] FCA 627 (“O’Connor”).  There, the claim for interlocutory relief was in the following form:

‘… 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 the terms and conditions of employment no less favourable than those which applied immediately prior to the termination of his employment.’

At par 48 of his Honour’s reasons, Gray J said:

‘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.’

7                     He next referred to Davids.  Of that case his Honour said at par 49:

‘… 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.

8                     In the case before his Honour, Gray J observed at par 51:

‘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.’ 

9                     This point, which was seen as a significant difference between the facts in the Davids case and the facts in the O’Connor case, seems to me to be the situation here.  The  application acknowledges that the termination by Mount Isa Mines of Mr McCann's employment had occurred, and it is claimed that it is contrary to the Act and the Court should make orders to overcome that circumstance.

10                  Gray J referred to a number of cases, and then said at par 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 the employer to return to the Court if, for instance, the employer decides 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 granted.

In pars 58 and 59 his Honour said:

‘In all the circumstances, I am of the view that I should grant the 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.

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.’

That sets out the form of orders which his Honour considered appropriate in the context of interlocutory reinstatement. 

11                  As Mr Murdoch of Senior Counsel notes in his written submissions on behalf of the respondent, at par 35:

‘The Court is traditionally reluctant to grant interlocutory relief which would effectively require specific performance of contracts of personal service.  Turner v The Australian Coal, Australasian Coal and Shale Employees’ Federation & Elcom Collieries Pty Limited [1984] SCR 177 at paragraph 32; Gregory v Phillip Morris Limited [1988] 80 ALR…’

Mr Murdoch referred to the observations of Gray J In Re Ivor Terrence Wheeler v Phillip Morris Limited (1990) 97 ALR 282 at par 310:

‘It is only where an employee, who has been purportedly dismissed elects to keep the contract of employment on foot that a declaration can be granted that the contract remains on foot, or that an injunction or decree of specific performance of the contract of employment will be considered by the court.  It has never been suggested that the granting of such relief will occur in the normal case.  Rather, the authorities make it clear that declaratory or equitable relief will be exceptional, largely because the mutual confidence necessary to the relationship of employer and employee may have been destroyed or the obligations to be enforced would make continued supervision of the relationship necessary.’.

12                  In the present case, the second applicant is an organisation taken to be registered under the registration and accountability organisation schedule of the Workplace Relations Act 1996 (Cth) (“the Act”) by operation of items 1 and 15 of Schedule 1 of the Workplace Relations Legislation Amendment (Registration and Accountability Organisations) (Consequential Provisions) Act 2002 (Cth).  The third applicant is an organisation taken to be registered under s 727 of the Industrial Relations Act 1999 (Qld) (“the Queensland IR Act”). 

13                  The first applicant is a member of both the second and third applicants.  The respondent is a corporation under the Corporations Act 2001  (Cth) capable of being sued in and by its corporate style and title, and is engaged in mining operations including mining operations in Mount Isa.

14                  The third applicant and the respondent are parties to, and bound by, the Mt Isa Mines Limited Award, which is an industrial instrument continued in force pursuant to s 710 of the Queensland IR Act and the Service Area Mt Isa Mines Limited Certified Agreement 2000 which is an industrial instrument made pursuant to the Queensland IR Act.  The terms and conditions of employment of Mr McCann were governed by those instruments.

15                  Since May 1997, Mr McCann was the senior shop steward of the second and third applicants at the respondent’s operations at Mt Isa Mines.  He held a number of positions at all relevant times.  He was a nominee and representative of the second and third applicants on a joint steering committee constituted by the second and third applicant, the respondent and others.  He was a nominee and representative of the two unions on the Area Management Monitoring Committee constituted by the two unions and the respondent and others.  He was also on the Fatal Accident and Injuries Committee constituted by the two unions, the respondent and others; Secretary of the second and third applicants’ District Committee for Mt Isa; Secretary of the second and third applicants’ Unfair Treatment Committee for Mt Isa and Secretary of the Queensland Council of Unions, Mt Isa, and a shop steward of the second and third applicants.

16                  Mr McCann has been active in a number of industrial issues over the years between the second and third applicant, members of the second and third applicant and Mt Isa Mines. 

17                  After a series of actions which I will shortly summarise, on 26 August 2003 Mr McCann attended an interview where he was represented by an organiser of the second and third applicants, Mr Rowan Webb.  At that meeting, Mr Rowan Webb informed those present on behalf of the respondent, being Mr Peter Lane and Mr Neil Hastie, that the first applicant’s conduct on 21 August was conduct taken in the first applicant’s capacity as shop steward of the second and third applicant.

18                  The evidence on behalf of Mr McCann is that neither Mr Lane nor Mr Hastie denied that the description by Mr Webb of the conduct of the first and second applicant was an accurate description.  At the conclusion of the meeting, Mr McCann was dismissed from his employment with Mt Isa Mines.  The letter of termination handed to him had been prepared in advance.  It is set out as exhibit BM7 to the affidavit of Mr McCann and says in part:

‘We have now completed our investigation into your involvement in an unauthorised meeting offsite during working hours, followed by the unlawful absence from work by employees on Thursday 21 August 2003 (the unauthorised conduct).  Our investigations have revealed that you not only took part in this unauthorised conduct but also initiated it.’

And later:

‘Rather than following the correct procedure, you decided unilaterally to abandon it and instead engaged in the unauthorised conduct.  As a result, you sought to damage the integrity of the Fair Treatment System.’

And later:

‘The Company views your actions in total as serious misconduct worthy of dismissal.  Accordingly, you are hereby advised that your contract of employment will be terminated effective at 4.00pm today (26 August 2003).’

The letter concluded:

‘All moneys owed by way of outstanding salary, accrued entitlements and four weeks pay in lieu of notice, will be deposited in your nominated bank account via electronic funds transfer.’

19                  At the conclusion of that meeting, Mr McCann asked Mr Lane and Mr Hastie why he had been treated differently from another employee, Mr Hautamaki who was involved in industrial action on 21 August 2003.  The evidence on behalf of Mr McCann is that neither Mr Lane nor Mr Hastie denied the allegation by Mr McCann that he had been treated differently from Mr Hautamaki.  Mr McCann claims that no other member of the two unions who participated in industrial action on 21 August has been dismissed from employment by the respondent.

20                  The statutory provisions which are relevant are s 298U, (a), (b), (c), (d), (e) and (f) of the Act, which set out the orders which the Federal Court may make in the proceedings, including orders imposing a penalty or as requiring the reinstatement of an employee, orders requiring the payment of compensation and injunctions (including interim injunctions); and s 298K(1) which prohibits an employer for a prohibited reason, or for reasons that include a prohibited reason, from doing or threatening to do any of the following:

‘(a)   dismiss an employee;

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

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

Section 298L(1)(a) and (i) provides that:

‘(1) Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person 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

         …

         (l)    in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions – is dissatisfied with his or her conditions.’

21                  Section 298V relates to the onus of proof.  It provides:

‘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.’

22                  Section 298T(1) provides for the making of an application to the Court for orders under s 298U in respect of conduct in contravention of Part XA, and s 298T(2) allows the application to be made by a person against whom the conduct is or has been, or is being carried out, and an organisation of which that person is a member. 

23                  It is also, in this particular case, in my opinion, relevant to have regard to s 298T(4), which provides:

‘An application cannot be made in respect of conduct and contravention of this Part by virtue of the operation of section 298G or 298H if:

(a)     an application has already been made for a remedy in respect of the conduct under a law of the State or Territory; and

(b)     that application has not failed for lack of jurisdiction.’

24                  It is to be noted that the terms and conditions of Mr McCann's employment were regulated by instruments in the Queensland Industrial Relations arena, and further, Mr McCann has filed a Fair Treatment Review Application.  Steps were taken to progress that application in meetings with the first applicant on 3, 4, and 9 September, and I will refer to the progress of that matter later in these reasons.

25                  Under s 298K(1) of the Act, it is sufficient to show that the conduct complained of was undertaken for a reason that includes a prohibited reason.  See MUA v CSL Australia Pty Ltd (2002) 113 IR 620 326 at par 41.  The rationale which underpins Part XA of the Act is the removal of fear of adverse action by employers against employees who perform industrial association functions, take a role in industrial associations, and promote industrial interests. 

26                  Wilcox and Cooper JJ in Davids said, at pars 106 to 107:

‘Section 298K forbids an employer from dismissing an employee for a prohibited reason or for reasons that include a prohibited reason.  The prohibited reasons are contained in s 298L.  Each of the reasons relates to the exercise of the right of an employee or independent contractor to join, or refuse to join, an “industrial association” (as defined) and, where the employee becomes a member of an industrial association, to take collective action by or through the industrial association in pursuit of their industrial interests.  Section 298L(1)(l) is concerned to ensure that an employee who is dissatisfied with his or her industrial conditions is not discouraged from participation in concerted action engaged in by the industrial association of which the employee is a member and which is seeking better industrial conditions.  The objective of s 298K is to ensure the threat of dismissal or discriminatory treatment cannot be used by an employer to destroy or frustrate an employee’s right to join an industrial association and to take an active role in that association to promote the industrial interests of both the employee and association.

In the context of the Act, Pt XA does not stand alone.  It is aimed at ensuring that employees may band together, if they wish, for collective bargaining of the type provided for in the Act to achieve the broader objectives of the Act as contained in s 3.  In this regard the Act operates in the same way and to the same ends as similar legislation in the United States of America: National Labor Relations Act 29 USCA ss 152(3), 157, 158(a) (1) and (3), 163; American Ship Building Company v National Labor Relations Board (1965) 85 S Ct 955; National Labor Relations Board v Brown (1965) 85 S Ct 980.  That which is protected by such legislation is more than the right to be a member.  It is the right to participate in protected union activities, including the taking of collective industrial action against an employer to seek to obtain better industrial conditions: American Ship Building Company at 965.’

27                  Section 298V enables the allegation of contravention of s 298L to stand as sufficient proof of the fact unless the employer proves otherwise.  Their Honours, in that respect, said at par 109:

‘Section 298L(1) requires that the applicant prove the employee was dismissed from his or her employment.  It also requires it be proved that the employee was at the time of the dismissal dissatisfied with his or her industrial conditions, and was a member of an industrial association that was seeking better industrial conditions.  In order to make the link between the dismissal and the circumstances which the applicant must establish to bring the dismissal within s 298K, the Act provides in s 298V a statutory presumption that the link exists in certain circumstances.  Under s 298V in proceedings under Div 6 of Pt XA of the Act for a contravention of a section in Pt XA, an allegation in those proceedings of conduct for a prohibited reason is sufficient for it to be presumed that the conduct was engaged in for that reason unless the employer proves to the contrary.  Section 298V does not relieve the applicant in proceedings under Div 6 of Pt XA of the Act from proving on the balance of probabilities each of the ingredients of the contravention.  It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise: R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507.’

28                  The rationale behind s 298K(1)(a) is the protection of industrial associations and their members.  It is directed to preventing employers “singling out” officers, delegates, and members of an industrial association for “special inferior treatment”: see HSUA v Tasmania (1996) 73 IR 140 at 144 and 145.

29                  I am in respectful agreement with the observations of Merkel J in AMACSU v Ansett (2000) 175 ALR 173 (“AMACSU”) where his Honour stated at pars 190 and 191:

‘Subject to one complication, the authorities establish that a clear line exists between a dismissal for activities that fall within para (n) (previously para (f) and a dismissal by reason of the holding of a union office which falls within para (a).  That qualification is that a dismissal based on the activities of a union delegate or officer must fall within para (n), rather than para (a), if it is to be for a proscribed reason, unless the reasons proffered by the employer and accepted by the court do not “exclude the possibility that [the dismissal] was associated with the circumstance that the [employee] was a [delegated officer]”.: see Mason J at 619 in GMH v Bowling.  As noted above and relevantly, for present purposes, his Honour added that if the possibility was no more than “slender” the circumstance might be disregarded as one which was not a substantial and operative factor in the decision.  I do not take his Honour as suggesting that the court is to determine the matter on the balance of possibilities, rather than of probabilities.  Rather, his Honour was stating that in a case in which the dismissal of a union official or delegate occurs in circumstances that are closely associated with the activities of the employee in that capacity, the employer carries the onus of rebutting the very real possibility that the dismissal was associated with the circumstance that the employee was an official or delegate.  A failure to do so can result in the court determining that, under the statutory scheme, the dismissal was for a proscribed reason.’  [My emphasis]

30                  It seems to me that the submissions on behalf of Mt Isa Mines fail to give sufficient recognition to the observations of Sir Anthony Mason in GMH v Bowling (1976) 12 ALR 605 as to the width of the reason referred to in 298L(1)(a).  In Lewis v Qantas Airways Limited (1981) 54 FLR 101 at 112 to 114, Morling J concluded that the dismissal of an employee who was a union delegate had nothing to do with “his union membership and activities”, recognising that dismissal in response to a delegate’s activities as a delegate could be regarded as dismissal for the reason that he was a delegate.

31                  The observations by Merkel J in AMACSU were referred to with approval by Wilcox J in FSU v ANZ Banking Group (2002) 114 IR 352 at para 171 and 172.  In the latter case, Wilcox J concluded, at par 173:

‘… It is clear that, both in her industrial activities on 27 August and in giving the interview to Ms Horin, Ms Buckland was wearing her FSU “hat”; the activities for which she was disciplined were associated with her position in FSU.  Therefore, adopting the course taken by Merkel J, it is necessary to ask whether the particular activities that gave rise to the disciplinary action may have constituted misconduct for a sufficient degree of seriousness as to exclude the possibility that she was being counselled and warned because of her position in FSU.

32                  In the present case, there is a serious conflict as to whether the termination was because of the prohibited reason in s 298L(1)(a) of the Act, or because of his activities which the mine says were unlawful, were not authorised by either the second or third applicant, and were not to be regarded as activities associated with his position as a delegated officer.  It was submitted for the mine that there was no serious question to be tried that the termination had anything to do with the prohibited reason referred to in s 298L (1)(a), it being submitted that that is confined to a reason which depends on the person’s status as a delegated officer.

33                  It is necessary, unfortunately, to refer in some detail to the events that occurred.  What I propose to do is to give a short summary of what occurred and then go on, in a little more detail, to the evidence of some deponents.

34                  In 1989, Mr McCann and his wife commenced living in Mt Isa.  In October 1994, he became employed by Mt Isa Mines and became a member of the second and third applicants.  In May 1997, as has been indicated, he took up a position as shop steward delegate for the two unions.  On 5 August, 2003, there was an altercation in the mobile fleet workshop between David Vipen, the acting supervisor,  and Lyall Garnett, who was an employee under Mr Vipen’s supervision.  An issue arose out of an incident which was witnessed by a number of employees, including Scott Brown.

35                  On 16 August 2003, Mr McCann contacted Rohan Webb for advice.  On 18 August 2003, he obtained further advice from Mr Webb in relation to the Garnett matter and he attended on behalf of Garnett, a conference on 20 August 2003 at the Queensland Industrial Relations Commission (“the QIRC”) involving the Garnett matter.  On that day he also attended a Fair Treatment Meeting concerning Lyall Garnett. 

36                  Disciplinary action was taken by the respondent against Scott Brown.  Mr McCann had been asked by Mr Brown to represent him at a disciplinary meeting, but Mr McCann was unavailable.  Mr Brown subsequently telephoned Mr McCann, very upset and angry, saying he had been given a Final Warning.  Mr McCann was then contacted by a number of members, ten or twelve according to one view of the evidence, wanting a meeting over the Scott Brown issue.

37                  Mr McCann said that he contacted Webb for advice and Webb advised to have a meeting.  There were also telephone conversations on 20 August 2003 between members of Mt Isa Mines management with AMWUQ representatives concerning allegations against Mr Garnett, and the further process regarding Mr Garnett was to resume on 2 September 2003.  On 21 August Mr McCann received further calls on his mobile phone on the way to work from members and there was a meeting held at the gates to the Mt Isa Mines lease in relation to the dealings involving Mr Brown.

38                  The meeting moved to the Trades and Labour Council building.  Mr McCann contacted Mr Webb and there were a series of telephone discussions between Mr McCann and Mt Isa Mines management to Mr Peter Lane, Mr Adrian Bell, Mr Ross Willis and then Mr Tony McPaul.  Mt Isa Mines refused to send any representatives to attend a meeting off the leased premises.  At that meeting, there were resolutions proposed and passed by Mt Isa Mine employees.  Those resolutions were drafted with the assistance of Mr Peter Lees of the AMWU.  I will refer to those resolutions later.

39                  Also on 21 August 2003, there were telephone conversations between AMWUQ officials Katelyn Allen, Peter Lees and Ryan Webb, and Mr Bell, Mr Hastie, Dianne Adams and Doug McLaughlin from Mt Isa Mines.  On 22 August, a number of interviews were conducted by Mt Isa Mines in respect of those who had participated in the industrial action the previous day.  It is not disputed that Mr McCann was asked different questions from the other participants and that three, McCann, Brown and Hautamaki were suspended.  Yet Mr Hautamaki, either on the same day or the next day, resumed work with a letter of warning.

40                  On 21 August 2003, a meeting at the TLC building organised by the AMWU resolved to have a further mass meeting on 26 August.  On 25 August, there was an article in the North West Star suggesting the stop work meeting proposed for 26 August, and Mt Isa Mines notified the QIRC and an urgent conference was held before the QIRC.  On 26 August there was a meeting at Mt Isa at the TLC building organised by the AMWU and attended by Mt Isa Mine employees, on a roster including those who had participated in earlier industrial action.  No employee was dismissed as a result of that meeting. 

41                  On 26 August Mr McCann was dismissed at the meeting to which reference has earlier been made, which was attended by Mr Webb and Mr Lane and Mr Hastie from Mount Isa Mines.  I have earlier referred to the claim by Mr Webb that Mr McCann’s action was taken in his capacity as shop steward and that that claim was not denied by either Mr Hastie or Mr Lane, nor was the complaint by Mr McCann that he was treated differently to Mr Hautamaki. 

42                  On 29 August Scott Brown returned to work with the letter of warning.

43                  On 26 August Mr McCann initiated the Fair Treatment System application.  On 3 September that application was heard by John Benjamin and Neil Hastie.  On 4 September, in a telephone conversation with John Benjamin, Neil Hastie, Brian McCann and Katelyn Allen regarding the Fair Treatment Application, the decision to dismiss was affirmed, and on 9 September McCann’s Fair Treatment Application was heard by the General Manager, Operations, Tony McPaul. 

44                  I will, as I indicated, refer briefly to some more detailed aspects of the evidence.

45                  Mr McCann claims in paragraph 3 of his affidavit:

‘I took part in a stop work meeting over dissatisfaction with MIM’s use of its Fair Treatment System on 21 August 2003 along with approximately thirty other MIM employees.  There were thirty-one people in attendance at the meeting.  Of the employees who took part, I was the only one dismissed.  The reason given for my dismissal was my participation in and initiation of an unauthorised meeting and an unlawful absence from work.’

He says at pars 18 and 19 of his affidavit:

‘There have also been industrial disputes where the AMWU has taken cases to the Queensland Industrial Relations Commission in order to improve the operation of the Fair Treatment System.  The AMWU has taken two cases for me to the QIRC to try to remedy problems that have arisen under the Fair Treatment System.

The most recent problems with the Fair Treatment System have arisen in Scott Brown’s case which is referred to later in this Affidavit.  The AMWU was active in organising meetings on 24 August and 26 August to deal with these issues.’

46                  The position concerning Mr Scott Brown is referred to in par 25 of Mr McCann’s affidavit, which I set out:

‘The disciplinary meeting in relation to Mr Garnett was held on 20 August 2003 not long after the Conciliation Conference had concluded in the QIRC.  The MIM representatives who attended were Neil Hastie, Deanne Adams and John Benjamin.  During this meeting, either Neil Hastie or Deanne Adams representing MIM, disclosed that there was a statement by an AMWU member, Scott Brown, to the effect that he had heard the Supervisor make a threat to Mr Garnett involving the use of a weapon.  Either Deanne Adams or Neil Hastie expressed the view that Scott Brown was “obviously lying”.  During this meeting, I asked both Deanne Adams and Neil Hastie on a number of occasions what was going to happen to Scott Brown and I was met on each occasion with the answer that the meeting was nothing to do with discussing Scott Brown.’

And then at par 30, Mr McCann says:

‘After I had received about 10 to 12 calls from members, I telephoned Rohan Webb, an AMWU organiser in Brisbane who is responsible for Mt Isa.  I told him that I was not sure what to do.  I told him I was feeling under pressure from the members.  I told Rohan about the events and what the members were saying to me.  Rohan’s advice was that I should have a meeting if that’s what the members wanted.  He said I was the elected Delegate and that was what I had to do.  I told Rohan I would have the meeting first thing in the morning at the gates.’

47                 In pars 35 and 36, Mr McCann deposes:

‘There was general discussion among the assembled members about whether to hold the meeting at the gate.  A suggestion was made to hold the meeting under the railway bridge.  The view I was getting from those present was that they wanted to meet away from the company ground.  I suggested that we use the TLC Building which was about five minutes from the MIM lease.  I spoke with most of the members present and the view was expressed that they wanted someone from MIM to explain their actions especially in relation to Scott Brown.  The assembled members moved to the TLC Building for that meeting which started at about 7.00 am.

I telephoned Rohan Webb and informed him that the members wanted to meet away from the lease.  I said they wanted to go to the TLC and Rohan said that if they wanted to go to the TLC, they should go to the TLC.  I also told Rohan that the feeling I was getting was that they wanted an MIM representative to explain what had happened.’

He says at pars 41 and 42:

‘I telephoned Peter Lane at about 8 am.  I said to him words to the effect: “Can you arrange for an MIM representative to come to the TLC Building to meet with us.  We want you to explain how MIM arrived at its decision to take disciplinary action against Lyall and Scott.”  Peter’s response was to the effect: “I can’t give you an immediate response.  I will call you back.”

Peter Lane telephoned me at around 8.20 am and said words to the effect: “We won’t be sending anyone down”.’

48                  In what I regard as a very important piece of evidence concerning the matter, and particularly the application of s 298L(1)(l), Mr McCann says, in pars 45 and 46, as follows: 

‘Following my report on the conversation with Ross Willis, I said to the meeting words to the effect: “Where do you want me to go from here?”  The suggestion was then made to ring MIM’s Operations General Manager, Tony McPaul.  I then telephoned Tony McPaul.  I said words to the effect: “Do you know what’s going on?”.  He responded: “Yes.”  I said words to the effect: “Would you authorise someone to come down here and address the meeting?”  His response was to the effect: “I don’t expect any staff member to address a meeting at the TLC or any other building not on the lease.”  He went on to say: “I would have preferred if you had convened a meeting at the crib room at MIM.  I could have got someone to go down there and address it.”  I replied to the effect: “The general feeling was to have the meeting at the TLC and that is why we are here.”

I asked Tony McPaul to the effect: “Do you know anything about what happened to Scott Brown?”  His response was: “No, I don’t.”  I then explained the events in relation to Scott Brown.  When I had finished telling him what had happened, Tony McPaul said words to the effect: “Oh yes, I do know about that.”  I said to Tony McPaul words to the effect: “The basic reason we are here is about what happened with Scott Brown.”  Tony’s response was to the effect: “We have gone back ten years.  The Fair Treatment process is there to deal with this sort of thing.”  I said words to the effect: “We are afraid of what would happen to Scott Brown if he went through the Fair Treatment process after what happened to Lyall Garnett.  How can it be that someone who goes into a Fair Treatment over a counselling ends up with a warning?”  Tony’s response was to the effect: “That’s the chance you take in the Fair Treatment appeal.  Evidence can come up.”  I said to Tony words to the effect: “We would like someone from MIM to have a meeting with us to explain what is going on with Scott Brown.”  Tony said words to the effect: “I will get someone to talk to you when you are back at work.”  I said words to the effect: “We are down here now.  Are you going to send someone down?”  Tony said words to the effect: “This action is illegal and we will be taking action accordingly.”  I said words to the effect: “Okay, so you say it is illegal and you are going to do whatever action you have to do.  We have lost faith in the Fair Treatment System and the only way we can see to address it was to have a meeting about it.”  I was referring to a meeting with the company.’ [Emphasis added]

49                  At the meeting there were two resolutions passed.  Mr McCann says that they were drafted in consultation with Peter Lees in the Brisbane office of AMWU, who was on speaker phone.  The draft resolution was read to him, and Mr Lees gave advice on changing the wording of the resolution.  The two resolutions, after amendment, were as follows:

‘We, the AMWU membership, employed at Mt Isa Mines present at a stop-work meeting at the TLC building on 21 August 2003 condemn the company’s abuse of the Fair Treatment system.  We fully support Lyall Garnett and Scott Brown and demand that Lyall be given a fair hearing and that any disciplinary measures against Scott Brown be dropped immediately and stricken from his record.  Failure of the company to comply with these demands may result in industrial action.’

And:

‘We, the AMWU membership, shall withdraw our labour until the start of shift tomorrow, 22^nd August 2003 in support of Lyall Garnett and Scott Brown.’

50                  At the interview at which Mr McCann was suspended, Mr McCann claims that he said:

‘In my opinion, the company is acting illegally in the bastardization of the grievance process.

Mr McCann says, in par 75:

‘I was accused of “instigating” the industrial action on 21 August.  The word “instigating” was used a few times.  Peter Lane said I had refused to return to work and tell others to return to work.  Rohan Webb responded.  Rohan did most of the speaking and I also asked some questions.  Rohan said words to the effect: “Brian was at all times acting in the capacity of AMWU Delegate.”  Neil Hastie’s response was to the effect: “Yep, yep.”  Rohan also said words to the effect: “He is under the direction of the membership.”  Rohan further said: “Brian has to follow the direction of his members.  That is what he does.”  Neil Hastie’s response was to the effect: “Yep, yep.  I understand that.”  Rohan’s comments seemed to be direct[ed] mainly at Neil Hastie.

Rohan said words to the effect: “Do you believe if Brian was not the AMWU Delegate we would be here going through this process?”  Neil Hastie’s only response was to make a sound like: “Mmmm.”  Neither Neil Hastie nor Peter Lane attempted to argue with Rohan Webb on this point.  They said nothing.

Rohan also said: “He (Brian McCann) was getting advice from me (Rohan Webb) and the AMWU office.  The AMWU office was guiding him and making sure that he was following the proper procedures.”  Neither Peter Lane nor Neil Hastie responded to this.’

51                  Mr McCann says, in par 85:

‘I was the only employee dismissed as a result of the industrial action on 21 August.  Both Scott Brown and “Tubby” [being a reference to Mr Hautamaki] were on final warnings prior to the disciplinary proceedings over the 21 August incident.  I simply had a counselling on my record.  I am unaware of any new final warnings being issued to any other employee arising out of the industrial action on 21 August.  Further, to the best of my knowledge, no employee has been dismissed as a result of not attending work as rostered in order to attend the meeting on 26 August even though I am aware some of those in attendance were disciplined in respect of their non-attendance on 21 August.’

52                  Matters relevant to the question of convenience are dealt with in pars 88 and following in his affidavit, but the effect of it is that there does not seem to be an insuperable financial difficulty, in the event that interlocutory relief is not granted, provided either that the principal proceedings in this case can be heard reasonably promptly, or that the Fair Treatment procedure, if it is unsatisfactory from Mr McCann’s perspective, and is referred to the QIRC, is also resolved within a reasonable time frame.

53                  Mr Bell is the Manager, Employee Services and Community Relations, Mt Isa, employed by Estrata Queensland Limited, having held his position since August 2001.  Neil Hastie, the Superintendent, Industrial Relations, and Deanne Adams, Industrial Relations Officer, report to him and assist him in discharging his role.  In relation to the disciplinary action against Mr Vipen and Mr Garnett and another employee involved in that investigation, Mr Scott Brown, Mr Bell says:

‘… it did not appear to me to be an especially unusual or sensitive matter, there was no reason for me to be more closely involved.’

54                  At pars 17 and 18 of his affidavit, he says:

‘Rohan Webb participated actively in the telephone discussions.  He said words to the effect, ‘Brian McCann has rung me about the fair treatment process in recent times, and he had told me that other employees had been ringing him with issues about the Fair Treatment System. 

Following the discussion, I believed that Brian McCann had acted without the authorisation, direction, or support of the AMWUQ. …’

55                  In respect of disciplinary action, Mr Bell says that Mr McCann’s actions could not be characterised as:

‘... other than wilful and deliberate misconduct, which has the added aggravation that it put other employees at risk in respect of their employment as well.’

56                  Relevant to the view of Mt Isa Mines that the activities by Brian McCann were carried out without authorisation or discussion with officials from his union, Mr Bell at par 45 says:

‘… Rohan Webb told us that Brian McCann had been in contact with him on Wednesday afternoon (20 August 2003) about the fair treatment issue, and had told him that he was receiving calls from employees.  However he did not at any time, suggest that he and Brian McCann had discussed conducting a stop work meeting.’

And later he refers to a question by Tony McPaul of Peter Lees, and that Peter Lees said:

‘ “I was not aware of it until after it had happened.”  At no time did Rohan Webb suggest that he had in fact been aware of the industrial action before it had happened.   Tony McPaul responded by saying words to the effect “I asked the question because I needed to know that they were not involved.  I realised you would have called us first before such a stop work meeting if you had known about it".

57                  It seems to me from what Mr Bell has said in pars 54, 55, 56 and 57 that there is an element of punitive action in making an example of Mr McCann for his conduct. 

58                  In the paragraph to which I have referred, Mr Bell makes it clear that he thought it was very clear from discussions that he had that Brian McCann’s actions had not been authorised.  He says if he had taken action which was legitimate as a delegate, he would have followed all of the processes which are binding on both Mt Isa Mines and AMWUQ and its members and delegates, including the provisions of the certified agreement and the Fair Treatment system, but he says:

‘In any event, it would not have made any difference to my own advice if I had thought that Brian McCann was acting in accordance with instructions from the AMWUQ.’

He says:

‘… I also found it inconceivable that Brian McCann would be acting legitimately in a delegate’s role by acting unlawfully in this way, without notice to MIM.

59                  However surprised as Mr Bell might be, as that quote indicates, it seems to me that there is very strong, if not overwhelming, evidence that the conduct by Mr McCann was in response to urging by members for a meeting; that there was a very deep concern about the treatment, particularly of Mr Scott Brown; that the activities leading to the making of the resolution were done with the knowledge and, in fact, with the active intervention of Mr Peter Lees in the formulation of the resolutions that were passed; and that there was no personal barrow of Mr McCann that he was pursuing in the activities that he was engaged in, other than those which might be thought to be relevant to his role as delegate. 

60                  I want to make it clear that this is an interlocutory application and that there are no final findings as to facts, and that nothing that I have said or will say is to be interpreted as a final conclusion, should the matter proceed to a hearing in the principal proceedings. 

61                  However, on the material presently before me, and recognising the interlocutory nature of these applications, it seems to me that there is very seriously able to be argued the claim that Mt Isa Mines was, in its termination of the employment of Mr McCann, acting in contravention of s 298L(1)(a) and s 298(1)(l) of the Act. 

62                  In respect of the s 298U(l) aspect of the matter, and on the question of authorisation, Mr Murdoch referred to part of the transcript of what occurred before Ms Asbury, Commissioner, in the AIRC.  However, as to the awareness of Mr Bell to which that passage of the transcript was directed, it seems to me that a somewhat different impression is obtained from the transcript in context. 

63                  What was said by Mr Lees at pages 21 and 22 is as follows: 

‘What happened, Commissioner, was Mr [McCann] was inundated with calls, because he has the union phone at his private home.  We used to have an office, but it’s now been closed down and it’s at Mr [McCann’s] home and Mr [McCann] was called to have a meeting the next day, so that Mr Brown and his work colleagues could understand why the company has taken such a harsh stance against a person that gave, what he believed, was a fair and honest recall of the events, as him being a witness.

As soon as that took place, a number of employees requested that meeting and Mr [McCann] indicated that he would talk to employees as they walked in the gate.  Now, Mr [McCann] is the senior delegate up in Mount Isa.  He’s on our State Council for our union and participates heavily in union activities and is only an organiser, for want of a word, not an agitator and the company, if you have a look at the clause that they’ve stood him down on, is virtually indicating that he’s facing dismissal for his – his participation in the organisation or the suggestion of other work colleagues of a meeting to be held over at the TLC meeting.

A meeting was held.  I became aware of it just prior to the meeting.  They had already been – sorry, they had already withdrew their labour from work before I heard about it.  Another organiser, [Rohan] Webb, had had several phone calls, but wasn’t aware that they were going to take industrial action.

I rang the company as soon as I found out and indicated to the company that what these people wanted was the company to go across there and explain and have some transparency in some of these outcomes that are coming out of this sort of thing, in particular, why Scott Brown was given a final warning as a witness.’ [Emphasis added]

Mr Murdoch relies particularly on the passage that is emphasised above.  Mr Lees at page 24, concerning the dissatisfaction with the Fair Treatment system said:

‘So Mr Brown went by himself and then got a final warning, Commissioner.  And I think that what this done up there on the site is it’s given concern to all workers that why would you ever be a witness to anything if what you believe is what you’ve been seen or heard that you're going to get a final warning or be subject to your family and your children,  everyone,  having their earning capacity removed from them and the severity of that’.

Ms Allen said, at page 25:

‘... we have a problem with the process which the company is undertaking for the fair treatment and that’s what the workers are concerned about.  They think that - I mean, they don’t think it's worth the piece of paper it’s written on.  That’s the big concern, that they don’t think that they’re going to be treated fairly in the fair treatment process.’

And later Mr Lees said:

‘... Commissioner, the other concern and grave concern we have is that a delegate that was operating under the guidance of the membership up there and just organising that the company has expressed their grave concern to me that this is the perpetrator and he’s the one that they’re going to - as the system occasionally does - be judge, jury and executor.’

Mr Lees said at page 27:

‘Mr Cann is stood down because he is –’

“On pay,” said Mr O’Brien for the Mines -

‘on pay - because he is the organiser, so-called organiser of the industrial action,  when he is the delegate and on request of membership acts on the request of the member, that’s what a delegate does.’

To which the Commissioner said:

‘I understand ...’

64                  Having regard to the fact that a trial in the principal proceedings could be held reasonably shortly, and having regard to the considerations earlier expressed about the grant of interlocutory relief, I do not think that the balance of convenience would, even in the absence of a consideration of the implications and significance of s 298T(4), favour the grant of interlocutory relief.  If I were to grant interlocutory relief, it would be by the making of orders similar to those made by Gray J in the O’Connor case.

65                  However, s 298T(1) of the Act provides:

‘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.’

And s 298T(4) provides:

‘An application cannot be made in respect of conduct in contravention of this Part by virtue of the operation of section 298G or 298H if:

(a)     an application has already been made for a remedy in respect of the conduct under a law of a State or Territory; and

(b)     that application has not failed for lack of jurisdiction.

66                  I am not prepared at this stage to hold that there is no competence to make the present application.  However, the consideration of s 298T(4)(a) provides a strong discretionary reason, in addition to the other matters to which I have referred, why I decline any exercise of my discretion to make any interlocutory order.  The submissions on behalf of Mt Isa Mines are important because they constitute a recognition that there is available to Mr McCann, through the Queensland Industrial Relations Commission (“the QIRC”), the opportunity of seeking a remedy, including a finding that he has been unfairly dismissed.

67                  It was submitted by Mr Murdoch on behalf of Mount Isa Mines that Mr McCann’s application under the Fair Treatment system, pursuant to the Services Area Certified Agreement in respect of the dismissal, falls within the jurisdictional bar to proceedings for interlocutory relief under Part XA of the Act pursuant to s 298T(4).  It is conceded that under the Fair Treatment system, Mr McCann has the right to refer the matter to the QIRC for resolution.  The conduct relied upon under his application under the Fair Treatment system is the same conduct in relation to his application under Part XA of the Act.

68                  It is conceded on behalf of the mines that there is a binding obligation on both parties to comply with the terms of the certified agreement.   The certified agreement has to contain procedures for preventing and settling disputes.  Reference should be made directly to s 159 and s 230 of the Queensland Act concerning the Commission’s powers to prevent and settle disputes.  It seems to me that it is at least arguable that the certified agreement comes within s 7(2) of the Acts  Interpretation Act (Qld).

69                  It is likely that the award and the certified agreement are statutory instruments.

70                  Clause 14(1) of the Mt Isa Mines Limited Award provides a grievance resolution procedure which is, in essence, the same as the Fair Treatment system provided for in the Services Area Certified Agreement.  An application validly made pursuant to the terms of the Certified Agreement is arguably at least an application made under a law of the State of Queensland; and that would therefore prevent an application being made of the kind the subject of the application filed on 4 September.

71                  What I propose to do is, at this stage, simply decline to make any orders for interlocutory relief, adjourn the application generally, give liberty to apply on three working days notice.  The making of those orders reflects my view that rather than deal in a final way with the question of jurisdiction, I should let the matter pause, so that the resolution, if at all possible, of the matter as contemplated in the certified agreement, with a reference to the QIRC if necessary, might be awaited. 

72                  I note that Mr Murdoch, on behalf of Mount Isa Mines, indicated that his client would co-operate in every way possible to permit the early determination of any such reference.  It has been expressly conceded on behalf of the respondent that it is within the jurisdiction of the QIRC to make orders, including orders in respect of a termination which might be held to be unfair.

Associate:

Dated:              29 September 2003