FEDERAL COURT OF AUSTRALIA

Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Limited

[2009] FCA 726

INDUSTRIAL LAW consideration of an application for an order for interim or interlocutory reinstatement of two employees said to have been dismissed by an employer in contravention of s 792(1) of the Workplace Relations Act 1996 (Cth) as that Act continues to apply by operation of the Fair Work (Transitional Provision and Consequential Amendments) Act 2009 (Cth) – consideration of whether an employer engaged in conduct for an operative reason that each employee had participated in or had given evidence in a proceeding under an industrial law – consideration of the discretionary factors going to an interlocutory injunction – consideration of the role of the presumption contained in s 809(1) of the Workplace Relations Act 1996 (Cth) for the purposes of interlocutory relief – consideration of whether the employer has filed evidence by the relevant decision‑maker identifying the reasons for the decision

Workplace Relations Act 1996 (Cth)

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)

Australian Broadcasting Corporation v O’Neill (2006) 225 CLR 57 - cited

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 - cited

David’s Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 – cited and quoted

Police Federation of Australia & Anor v Nixon & Anor [2008] FCA 467; (2008) 168 FCR 340 – cited and quoted

Bowling v General Motors Holdens Pty Ltd 8 ALR 197 – cited and quoted

General Motors‑Holden’s Pty Ltd v Bowling 51 ALJR 235 – cited and quoted

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

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, CRAIG BROWN and DAVID COOMBS v BLUE STAR PACIFIC PTY LIMITED

QUD154 of 2009

GREENWOOD J

6 JULY 2009

BRISBANE via video-link to the parties

UPON the first applicant giving the usual undertaking as to damages,

THE COURT ORDERS THAT:

1.         Until the hearing and final determination of this matter or earlier order, the respondent reinstate the second applicant, Craig Brown, in the position he held prior to the termination of his employment on 19 June 2009 on the terms and conditions of that employment. 

2.         Until the hearing and final determination of this matter or earlier order, the respondent reinstate the third applicant, David Coombs, in the position he held prior to the termination of his employment on 19 June 2009 on the terms and conditions of that employment. 

3.         The parties have liberty to apply on two days notice. 

4.         The proceeding is listed for trial on 17 and 18 August 2009.

5.         The proceeding will be listed for directions at a date to be notified to the parties by the Court.

6.         The costs of the motion filed by the applicants on 25 June 2009 are reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          On Friday, 19 June 2009, the respondent Blue Star Pacific Pty Ltd (“Blue Star”) terminated, effective that day, the employment of the second applicant, Craig Brown, and the employment of the third applicant, David Coombs.  The first applicant (the “CEPU”), Craig Brown and David Coombs contend that the dismissal of each employee occurred in contravention of s 792(1)(a) of the Workplace Relations Act 1996 (Cth) (“the Act”) because, they say, Blue Star dismissed each employee for the reason that, or for reasons that included as an operative reason, that each employee had given evidence before the Federal Court of Australia in proceedings commenced by the CEPU contesting whether a proposed employee collective agreement between Blue Star and its employees (“the proposed Blue Star Agreement”) had been approved in accordance with the requirements of s 340 of the Act and particularly s 340(2) of the Act. 

2                          The present proceeding was commenced by the applicants on 25 June 2009.  It is common ground between the parties that the proceeding relates to a matter arising under the Workplace Relations Act 1996 (Cth) as it continues to apply due to the operation of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). 

3                          Proceeding QUD59 of 2009 in relation to the proposed Blue Star Agreement was heard before Justice Reeves on 15 and 16 June 2009.  On 30 June 2009, Reeves J made orders in favour of the CEPU.  Reasons have not yet been published by his Honour.  On 15 June 2009, Craig Brown and David Coombs gave evidence that they had voted against approval of the proposed Blue Star Agreement. 

4                          The respondent concedes that the proceeding before Reeves J was a proceeding under an industrial law for the purposes of the Act.  Section 792(1)(a) provides, relevantly, that Blue Star must not dismiss an employee “for a prohibited reason, or for reasons that include a prohibited reason”.  Section 793(1) of the Act provides, relevantly, that the conduct of dismissal occurs for a prohibited reason if it is carried out because the employee:

(k)        has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; or

(l)         has given or proposes to give evidence in a proceeding under an industrial law;

5                          In the principal proceeding, the applicants claim declarations as to a contravention of s 792 of the Act in respect of the dismissal of Craig Brown and David Coombs; an injunction pursuant to s 807 of the Act requiring Blue Star to reinstate each of them; an order for the payment of compensation to each of them; an order for the imposition of a pecuniary penalty upon Blue Star together with an order that such penalty be paid to the CEPU. 

6                          The present application concerns an application for interlocutory relief framed in these terms:

(a)        an order that until the hearing and final determination of this matter the respondent reinstate the second applicant Craig Brown in the position which he held prior to the termination of his employment on 19 June 2009 and treat as null, void and of no effect such termination of employment;

(b)        an order that until the hearing and final determination of this matter the respondent reinstate the third applicant David Coombs in the position which he held prior to the termination of his employment on 19 June 2009 and treat as null, void and of no effect such termination of employment.

7                          The applicants put the case for interlocutory relief on this basis. 

8                          David Coombs swore an affidavit on 25 June 2009.  He says he is 46 years old and is an electrician.  He was employed by Blue Star from 14 November 2006 to 19 June 2009, that is, two years and seven months.  Blue Star conducts an electrical contracting business in south east Queensland and performs electrical contracting work in the commercial construction sector.  For the last eight months prior to 19 June 2009, Mr Coombs was working at a site called “Brisbane Central”.  That site proved to be a difficult working environment.  There were not enough crew employed.  The site was disorganised and messy.  He and others were under pressure to meet deadlines for the completion of work.  Nevertheless, he says he got on well with his peers and no complaint has ever been made to him by management concerning his work performance throughout the period he has worked for Blue Star.  On the contrary, during the period of his work on the Brisbane Central site, he received a letter from Blue Star which is undated, in these terms:

Dave Coombs,

The 141 Queen Street substation shut down and consumer’s mains reconnection works formed a critical part of the Brisbane Central project and were required to be completed in an extremely limited timeframe. 

On behalf of Blue Star Pacific management, I would like to formally express my sincere thanks for your willingness to assist and for all of your efforts and hard work at this difficult stage of the project.  Your excellent work ethic and tradesmanlike manner are a credit to Blue Star Pacific.

Yours sincerely,

Mike Walsh

Construction Manager

9                          On Monday, 15 June 2009, David Coombs gave evidence for the CEPU in the proceedings commenced against Blue Star.  He took a rostered day of leave in order to give evidence on 15 June 2009.  He returned to work on Tuesday, 16 June 2009.  He had a brief conversation with Craig Brown and Ben Vandermaat both of whom had given evidence in the proceedings on 15 June 2009.  He did not speak to anyone in management in relation to having given evidence.  He says that during the course of the Court proceedings on Monday, 15 June 2009, it became obvious to him that Blue Star no longer employed the majority of those employees who had been listed to give evidence for the CEPU in that proceeding.  He says that this realisation did not cause him particular concern as he believed that management considered him to be a good worker, that he had demonstrated a capacity to work autonomously and, because he had worked at the site for eight months, he was known to have a good working knowledge of the project.  He says he considered that his evidence was not hostile to management and that he simply told the truth about events that had occurred in relation to the proposed Blue Star Agreement. 

10                        As to the events of termination, David Coombs says this.  On Friday, 19 June 2009, at the end of the working week in which he gave evidence, the Construction Manager, Mike Walsh, at about 1.40pm located him on the site and asked him to go to the office.  He did so.  Craig Brown was also asked to go to the office.  Mike Walsh explained that he had an unpleasant job to do and handed each man a letter of termination saying, “I’ve got to let you guys go”. 

11                        The letter to David Coombs says:

Mr David Coombs

June 19, 2009

Subject:  Termination Notice

Dave,

Due to normal and customary turnover of labour as discussed earlier today Friday, 19 June 2009, we advise and provide formal notification of the termination of your employment with Blue Star Pacific Pty Ltd. 

We would like to take this opportunity to thank you for all of your efforts to date. 

Additionally, please be advised that your employment will terminate at the close of business today, Friday, 19 June 2009.  Two (2) week will be paid in lieu of notice.

With regards

Mike Walsh

Construction Manager

12                        Craig Brown has misplaced the letter handed to him by Mike Walsh. 

13                        David Coombs says that he was shocked by the termination and asked Mike Walsh why his employment had been terminated as he had been working for the company for three years and could not believe that the company had taken such a step.  He says that Mike Walsh did not respond to that observation but did otherwise say that he had “guys coming from the John Goss site and I’ve got to find work for them”.  David Coombs asked Mike Walsh whether the termination was giving effect to a redundancy.  David Coombs was told that he would have to work that out for himself.  Since the termination of his employment, David Coombs has received payments into his bank account which seem to him to suggest payment of two weeks wages and other accrued entitlements. 

14                        Craig Brown has also sworn an affidavit.  He is an electrician and has been a tradesperson for approximately 30 years.  He is 47 years of age and began working for Blue Star on 16 September 2008.  He worked on a number of sites including the Brisbane Central site.  He commenced work on that site on 11 May 2009 organising the mains cabling and associated cabling.  He says that the Brisbane Central Project is a 10 storey building.  He supervised up to five Blue Star employees.  He says that there was difficulty maintaining continuity in the team working on the electrical aspects of the project as there seemed to be significant sick leave being taken and Blue Star used many apprentices on site who necessarily were required to leave the site to attend technical educational training.  He said that these absences required Blue Star to continuously manage its employees to ensure that there were enough people available in the various sections on site.  He says that there were never enough people to do the cabling work within the times required and he therefore sought assistance from workers on other sections of the site to provide help in undertaking the cabling work.  He says that when he went onto the site he was informed by Blue Star that he was expected to complete particular required work within one month.  However, he found that the cabling requirements were such that he was only able to complete approximately one third of the job within that time.  On Monday, 15 June 2009, Craig Brown gave evidence in the Federal Court proceedings before Reeves J.  He returned to work on Tuesday, 16 June 2009.  His normal working hours were 6.30am to 2.30pm.  On Tuesday, Mike Walsh asked him whether there was a quicker way that he could get the particular work done that he was undertaking.  Craig Brown says that he explained to Mike Walsh the difficulties presented by the matters just mentioned concerning an insufficient number of people working on the job and other matters, to which Mike Walsh responded, “Perhaps if you didn’t spend the day at court”.  Craig Brown seems to be suggesting therefore that Mike Walsh exhibited a sense of irritation about Craig Brown’s absence from the site to give evidence in the proceedings before Reeves J. 

15                        Craig Brown says that on his return to work after having given evidence, he spoke with David Coombs and Ben Vandermaat about the Court proceedings on Monday, 15 June 2009.  On Friday, 19 June 2009, Mike Walsh called him into the office.  David Coombs was also in the office.  Mike Walsh told both men that the company proposed to let them go effective from 19 June 2009.  Craig Brown says that David Coombs protested that he had worked hard for the company for three years and, “You do this to me”.  Mike Walsh said, “You’re being laid off due to lack of work”.  Craig Brown responded, “How can this be when we’re only approximately half way through the task and the manning levels have always been stretched?”  Mike Walsh responded, “A leading hand and others will be coming to the site on Monday after having previously been loaned to John Goss Electrical on the Boggo Road job”.  David Coombs left the office distressed.  Craig Brown left the office and advised the employees working for him that his employment had been terminated.  He says that he has received payments into his bank account which suggest to him the payment of two weeks wages and other accumulated entitlements. 

16                        The applicants rely upon a further affidavit sworn by Keith McKenzie.  He is employed by the CEPU and the Electrical Trade Union of Employees Queensland, as an organiser.  He has been in that role for nine years.  David Coombs and Craig Brown are members of each Union.  Mr Brown was employed as a leading hand electrician and Mr Coombs as an electrician, by Blue Star.  On 26 February 2009, proceedings were commenced by the CEPU against Blue Star in relation to the purported approval of an employee collective agreement pursuant to the Act.  On 26 February 2009, Mr Coombs and Mr Brown each swore an affidavit in support of the Union’s position and each man gave evidence on 15 June 2009.  Mr McKenzie says that the proper functioning of the Union is heavily reliant upon securing the support of its members without fear that steps might be taken against members who give evidence in a particular proceeding.  Mr McKenzie says that seven of the 8 employees who provided affidavits in support of the Union’s case have now had their employment with Blue Star terminated and the eighth employee was offered and accepted a voluntary redundancy. 

17                        Mr McKenzie also says that he is aware of the state of the job market for electricians in the construction industry in south east Queensland.  He expresses the opinion that the job market is “presently constricted with limited full time opportunities available.  This is due to the limited new commercial construction projects being undertaken in south east Queensland”.  Mr McKenzie says that in the light of these circumstances, he is “significantly concerned about Mr Coombs and Mr Brown’s ability to find suitable alternative employment”. 

18                        The affidavits of David Coombs, Craig Brown and Keith McKenzie represent the material relied upon by the applicants in support of the interlocutory orders. 

19                        There are two other matters relating to the interlocutory application.  Firstly, the respondent relies upon an affidavit sworn 3 July 2009 by Tania Jayne Linnegar, the Company Secretary and Financial Controller of Blue Star.  Ms Linnegar has held that position since 6 July 2004.  Ms Linnegar by her affidavit provides a contextual explanation of the circumstances affecting Blue Star and the imperatives it confronts in dealing with workflows and demands for labour.  The applicants also rely upon the affidavit of Ms Linnegar in the sense that they contend that the affidavit fails to come to grips with the central question in the proceeding which is, who was the individual who took the decision to dismiss Craig Brown and David Coombs and, what were the reasons actuating that person in dismissing those men?  Secondly, the applicants rely upon, for the purposes of the interlocutory application, s 809 which is in these terms:

809(1)  If:

            (a)        in an application under section 807 relating to a person’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 to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in the 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 proves otherwise. 

20                        Section 809(2) is in these terms:

809(2)  This section does not apply in relation to the granting of an interim injunction. 

21                        The organising principles governing the exercise of the discretion in granting or withholding the grant of an interlocutory injunction are well understood and clearly explained by the High Court in Australian Broadcasting Corporation v O’Neill (2006) 225 CLR 57 per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65] to [72] as their Honours emphasise the principles established in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618.  It is therefore necessary for the applicants to show a sufficient likelihood of success in the principal proceeding at trial to justify, in the circumstances, the preservation of the status quo pending the trial.  That is the sense in which the applicants must demonstrate whether a prima facie case is made out.  In analysing whether the applicants have demonstrated a sufficient likelihood of success to justify the preservation of the status quo pending trial, the Court will examine the strength of the prima facie case and whether, if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be held entitled to relief.  The strength of the probability of success depends in part upon the nature of the rights asserted by the applicants and the practical consequences likely to flow from the order the applicants seek.  A sufficient likelihood of success in this sense might properly also be described as whether the applicants have shown a serious question to be tried.  The applicants must also demonstrate that the injury the individual applicants would be likely to suffer if an interlocutory injunction is not granted, outweighs the injury the defendant would suffer if the injunction is granted.  Further, the applicants must show that damages will not be an adequate remedy.  The question of balance of convenience and the adequacy of damages are in turn influenced by the strength of the prima facie case and the nature of the rights asserted by the individual applicants.  In this case, the applicants contend that they have been deprived of their employment for a prohibited reason in circumstances where the legislation enacting the prohibition and conferring remedial rights in respect of contraventions of the prohibition, is directed to the protection and preservation of the freedom of association (Division 3 of Part 16 of the Act). 

22                        At trial, the applicants propose to rely upon the presumption contained in s 809(1) of the Act.  The operation of the presumption was explained by Wilcox and Cooper JJ in David’s Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at [109] in the context of the then s 298V of the Act which was, relevantly, in the same terms as s 809(1) of the Act.  Their Honours said:

Section 298V does not relieve the applicant in proceedings under Division 6 of Part 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. 

23                        Section 809(1) has the effect of reversing the onus of proof with the result that it is presumed in the proceeding brought under s 807 of the Act that the conduct was carried out for a prohibited reason unless the employer proves otherwise.  The policy of that approach is simply that the circumstances by reason of which an employer might take action of dismissal against an employee are necessarily peculiarly within the knowledge of the employer. 

24                        Section 809(2) suggests that the presumption might not operate in an application for an interim or interlocutory injunction.  However, it seems to me that the correct approach is this.  The organising principles governing the grant or otherwise of an interlocutory injunction are directed, importantly, to determining whether the applicants have demonstrated a sufficient likelihood of success at trial to justify, in the circumstances, the preservation of the status quo pending the trial.  At the trial, the presumption operates, effecting a reversal of the onus of proof once the other integers of the section giving rise to the prohibition are made out.  In determining whether the applicants have demonstrated a sufficient likelihood of success at trial, the Court must take into account the operation of the presumption at trial in the context of the evidence available on the interlocutory application.  The presumption cannot be determinative of the interlocutory application but its operation in the context of the trial is relevant to the strength of the probability of success at trial. 

25                        In that sense, I respectfully agree with the observations of Ryan J in Police Federation of Australia & Anor v Nixon & Anor [2008] FCA 467; (2008) 168 FCR 340 at [69] in these terms:

If the effect of s 809(2) is to require an applicant to demonstrate, in the absence of any evidence at all from the respondent, a serious question to be tried as to each element of the cause of action, including the respondent’s reason or reasons for the impugned conduct, the applicant may suffer irreparable damage before he or she can be accorded a final trial at which, ex hypothesi, the presumption would enable the cause of action to be made out.  I consider that such a restrictive and apparently unjust interpretation should only be given to a provision which occurs in what seems to be a beneficial or facultative legislative scheme, if the language of the subsection intractably requires it.  In my view, a construction more consonant with the statutory context and history and the preparatory material is that s 809(2) precludes the Court from finding, on an application for an interim or interlocutory injunction, even provisionally, by recourse solely to the presumption that the respondent’s conduct was for a prescribed reason or for reasons that included a prescribed reason.  However, I do not construe s 809(2) as preventing the Court, in assessing whether there is a serious issue to be tried, from having regard to the availability of the presumption in the final determination of the application.  Similarly, I consider that account can be taken of the ultimate availability of the presumption when assessing the respective strengths of the case for the applicant and that for the respondent as part of exercising the general discretion to grant or withhold interlocutory relief. 

26                        Having regard to these matters, the applicants say that there is no controversy that Mr Brown and Mr Coombs were dismissed with effect from 19 June 2009.  Nor is there controversy that each man gave evidence in the proceedings brought by the CEPU in relation to the proposed Blue Star Agreement and that those proceedings relate to an industrial law.  The applicants say that an inference arises that each man was dismissed for the reason that he participated and gave evidence in the CEPU proceedings before Reeves J.  That inference arises on the footing that the evidence was given on Monday, 15 June 2009 and each man’s employment was terminated at the end of the working day on Friday of the same week.  In other words the timing of the termination is proximate to the giving of the evidence.  Secondly, each man had been a good worker.  David Coombs had worked for Blue Star for two years and seven months and had been commended for his commitment to resolving a difficult stage of the Brisbane Central Project.  Craig Brown had worked for Blue Star since 16 September 2008 although he had only worked on the Brisbane Central site from 11 May 2009.  Craig Brown deposes to what might only be a sense of irritation on the part of Blue Star through Mr Walsh but nevertheless reflects some focus on Tuesday following the giving of the evidence, in the context of work duties, upon Mr Brown’s day at Court on the preceding Monday.  The hypothesis that each man was dismissed for reasons that include, as an operative reason, the giving of evidence in the CEPU proceedings, is entirely consistent with the evidence of the applicants.  Further, the applicants rely upon the presumption in terms of the strength of the case at trial.  The applicants contend that if the evidence remains at trial as it is on the interlocutory application, the applicants will succeed at trial. 

27                        The respondent seeks to dispel any inferences which might arise from proximity of timing, a good history of work performance, the remark by Mr Walsh and the operation of the presumption by identifying the context within which the dismissal decision was taken. 

28                        In that regard, Ms Linnegar gives the evidence for Blue Star.  Ms Linnegar says that she is responsible for financial and payroll issues and project and general employee/personal records.  She says that employees employed by Blue Star in electrical classifications have their terms and conditions governed by a Union Collective Agreement lodged with Workplace Authority on 26 February 2008.  She says Blue Star has been experiencing a contraction and downturn in work/projects since at least June 2008.  That has given rise to the need to make some positions redundant and when she refers to redundancy she refers specifically to the notion of “the ordinary and customary turnover of labour”.  That phrase introduced the termination notice set out in the letter to Mr Coombs on 19 June 2009.  Depending upon workloads and projects being undertaken, Blue Star will increase or decrease its labour force accordingly.  She says that where employees are terminated due to lack of work, including as a result of projects being completed or commissioned, “it is all part of the respondent’s ordinary and custom[ary] turnover of labour”.  Accordingly, Ms Linnegar attributes employee terminations in all cases to the ordinary and customary turnover of labour. 

29                        Ms Linnegar says that the Managing Director of Blue Star, Mr David McInnes, has conducted consultations with the Union to mitigate the affect upon employees of a downturn in work.  Some of that mitigation has included employees taking available paid leave, unpaid leave and employees being placed on labour hire to other companies.  Voluntary redundancy has also been adopted as one mitigating tool. 

30                        Ms Linnegar says that between June 2008 and December 2008 approximately 32 employees left the employment of Blue Star.  Some resigned.  In some cases, employment was terminated for performance reasons.  Some employees were made redundant.  From January 2009 to date, approximately 30 employees have left employment with Blue Star.  Again, some have resigned.  In some cases, employment was terminated for performance reasons and approximately 19 positions were made redundant.  Since January 2009 to date, no employees have been replaced.  Ms Linnegar says that the number of employees employed by Blue Star since February 2009 has reduced by over 30%.  Having regard to Blue Star’s current and predicted workload, Ms Linnegar estimates that the number of employees will be reduced by a further 30% by August 2009.  In the last month or so, four employees have been made redundant including Gary Batey on 1 June 2009, David Coombs and Craig Brown on 19 June 2009 and Benjamin Ostermeyer on 27 June 2009.  In the coming week Blue Star will give notices of redundancy to three further employees.  At para 16, Ms Linnegar says this:

16.       Given that I do not work on site, I am unaware of the quality of the day to day work undertaken by employees on site and/or the skills required by the respondent on site.  I am therefore not aware of the details of the selection process undertaken by the respondent to determine what specific employee/s will be made redundant.  I am, however, aware, as a result of direct discussions I had with Mr McInnes, that the respondent does not always look at the selection of employees on a site by site basis only.  In this regard …, employees who are engaged on a particular site are not immune from redundancy selection merely because they are working on a particular site that continues to operate or has on‑going work, as compared to another site, including one that is closed or closing down. 

31                        Ms Linnegar says that Blue Star has not obtained any significant work since January 2009.  Blue Star had approximately $15.6m of work on hand over 12 projects as at June 2008.  Currently Blue Star has approximately $4.4m in hand over five major projects.  On 25 May 2009, Blue Star sent 10 employees to another contractor, John Goss Projects Pty Ltd, on temporary labour hire.  On and from 22 June 2009, John Goss has been returning these employees to Blue Star.  Ms Linnegar says that prior to making Mr Brown and Mr Coombs redundant, Mr McInnes contacted Stowe Australia Pty Ltd and asked whether that company could take any of Blue Star’s existing employees.  Stowe could not do so. 

32                        Ms Linnegar says that on or around 4 March 2009 the CEPU served Blue Star with its proceedings challenging the proposed Blue Star Agreement.  Accompanying the application was an affidavit by a Union organiser, Mr Hicks, sworn 27 February 2009 which identified the name of 13 of Blue Star’s employees who apparently had voted against approval of a proposed agreement.  It was suggested by Mr Hicks that these 13 employees would give evidence in the proceedings.  The applicants’ evidence in that proceeding included affidavits from employees Cane, Lilliman, Fletcher, Coombs, Brown, Ormond and Wermizyari.  The Union advised that it would issue summons to Blue Star’s employees Sloan, James, Wells, Vandermaat, Cumming and Alexander.  The evidence of all 13 employees was essentially the same, namely, that they had all voted against approval of the proposed Blue Star Agreement. 

33                        Ms Linnegar says that this is the status of those 13 employees.  Cane was made redundant on 23 April 2009.  Lilliman was made redundant on 16 April 2009.  Fletcher was made redundant on 20 April 2009.  Coombs and Brown were made redundant on 16 June 2009.  Ormond was made redundant on 11 May 2009.  Wermizyari was made redundant on 4 May 2009.  Sloan accepted a voluntary redundancy on 14 April 2009.  James was employed under a labour hire arrangement by John Goss.  Wells remains employed as a mature age apprentice.  Vandermaat remains employed and was promoted from leading hand to foreman on 19 June 2009.  Cumming was made redundant on 3 April 2009 and Alexander was made redundant on 3 March 2009. 

34                        Ms Linnegar says, in effect, that this treatment of the 13 employees reflects the spread of circumstances influencing Blue Star’s engagement with its employees generally.  The employment of some men was terminated for orthodox reasons of redundancy.  Some men lost employment for reasons of “customary turnover of labour”, one other was placed under the labour hire arrangements and two of the men retained their employment.  The respondent says that it is essential for the applicants to demonstrate differential treatment, that is, discrimination or victimisation of the particular employee.  Ms Linnegar says that all employees fall within, in effect, the employment management practices of Blue Star and these practices apply to each individual equally.  Some positions may be made redundant.  Some men or women may be placed on labour hire arrangements or some employees might be offered the opportunity to accept voluntary redundancies or the taking of leave on some other basis. 

35                        Accordingly, Ms Linnegar seeks to dispel any inference that might arise that Blue Star terminated the employment of Coombs and Brown for a prohibited reason under the Act.  The operative discrimination or victimisation is the employer engaging in identified conduct for a prohibited reason.  An employer might dismiss an employee on a number of grounds.  Those grounds might not involve any contravention of the terms and conditions of employment nor any contravention of relevant legislation.  However, allowing the mind of the decision‑maker to be influenced by, among other reasons, a prohibited reason is itself the expression of differential treatment. 

36                        The difficulty is that Ms Linnegar is unaware of the quality of the work undertaken by particular employees or the skills required by particular employees on a site.  She is not aware of the details of the selection process undertaken by Blue Star to determine whether a particular employee’s employment might be terminated.  Nor is she aware of the process Blue Star undertakes in reaching decisions as to termination in respect of a particular individual.  She is not familiar with the criteria the decision‑maker applies in reaching an operative decision to terminate a particular man or woman from a particular employment position or classification. 

37                        It is odd that Blue Star is not able to rely upon an affidavit from the actual decision‑maker who can say something along the lines:

I am Ms X or Mr Y.  I am responsible for making decisions about employment allocation and the employment requirements of the company at a site.  I made a decision on date Z to terminate the employment of Coombs and Brown and I made that decision for the following reasons.  The criteria I applied in determining that the employment of Coombs and Brown had to be terminated was this.  In reaching a decision to dismiss Coombs and Brown I was not influenced by the historical fact that Mr Brown and Mr Coombs had given evidence in a proceeding commenced by the CEPU which was heard before the Federal Court. 

38                        Rather, the evidence of Ms Linnegar speaks about the contextual circumstances which have caused the company to make decisions concerning its engagement with its cohort of employees generally.  It is true to say that the affidavit does not come to grips with the question of who made the actual decision to terminate the employment of Brown and Coombs on Friday, 19 June 2009 and explain the circumstances of that particular decision. 

39                        In Bowling v General Motors Holdens Pty Ltd 8 ALR 197, Smithers and Evatt JJ at p 201, ll 32 – 38 identify the immediate inquiry in these terms:

In relation to the critical issue, the immediate inquiries are, what person or persons made the decision to dismiss the informant, what relevant circumstances were within their knowledge, whether it was known to them that the informant was a shop steward, and if they knew of the informant’s position of shop steward, what they have to say as to whether or not that matter had any and what degree of influence in the making of the decision. 

40                        In the appeal to the High Court in General Motors‑Holden’s Pty Ltd v Bowling 51 ALJR 235, Mason J (Gibbs, Stephen and Jacobs JJ agreeing; Barwick CJ dissenting) observed that:

The unexplained failure of the appellant to call the two Melbourne directors then becomes significant. It left uncontradicted the possibility that the respondent’s position as a shop steward was an influential, perhaps even a decisive, consideration in their minds to a lesser extent the appellant’s omission to tender the telex messages, other than the telex dispatched at 4.13pm on 5 February which recorded the dismissal and events subsequent thereto, creates another difficulty.  I acknowledge that the appellant in its evidence disclosed the evidence of telex messages and that the respondent was at liberty to subpoena them.  But to say that this is no answer to the criticism that the onus being on the appellant it was for the appellant to show that the telex messages, comprehensive as we know them to be, did not support the existence of a reason falling within s 5(1)(a). 

41                        In Bowling, a Mr Gould had made a recommendation to two directors who took the actual decision to dismiss the particular employee.  The failure to call evidence from those who took what was described as the “effective decision to dismiss” left uncontroverted the hypothesis that dismissal had taken place for, in the context of the relevant legislation, a prohibited reason.  Gibbs J also made this observation:

However, it would in my opinion be wrong to think that there is any special difficulty in the way of an employer who seeks to prove that in dismissing an employee he was not actuated by the fact that the employee was a shop steward or other delegate of an organisation.  The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and it is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal.  If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed he was dismissed in spite of the fact and that evidence had been accepted, the onus would have been discharged. 

                                                                                                [emphasis added]

42                        These are observations made, of course, in relation to the quality of the evidence adduced at trial.  Nevertheless, in weighing the strength of the prima facie case on the interlocutory application, it is important to note that Blue Star has not put on evidence from the actual decision‑maker who is necessarily in the most advantageous position to say precisely what factors influenced the decision to terminate the employment of Mr Coombs and Mr Brown on 19 June 2009.  Moreover, it seems to me that on the interlocutory application it is open to the Court to draw an inference that the failure to adduce evidence from the actual decision‑maker is consistent with the decision‑maker not wishing to say on oath or by affirmation before the Court that the fact of Mr Coombs and Mr Brown having given evidence in the CEPU proceeding before Reeves J was not an operative reason, among other reasons, for the termination of their employment on 19 June 2009. 

43                        The respondent criticises the formulation of the case for interlocutory relief on the footing that the applicants have not undertaken analysis of the field of employees whose employment was terminated and then sought to demonstrate differential treatment by the employer as against Mr Coombs and Mr Brown.  The respondent says that no evidence has been filed by the applicants going to the circumstance of the other eight employees nor any evidence as to how many other persons have recently ceased employment with the respondent.  The respondent also says that the applicants have ignored the current economic reality affecting the employment relationship between Blue Star and its employees. 

44                        It is true that the applicants have not sought to forensically examine the circumstances of those employees within the cohort whose employment has been terminated in recent times.  Nor have the applicants examined in detail the circumstances of the 13 employees who gave evidence before the Federal Court.  The respondent says that the failure to join any other employees as applicants in the proceeding gives rise to an inference that no contention can be made of termination for a prohibited reason on the part of any of the other employees. 

45                        It seems to me that the focus must be upon whether the particular applicants, in the circumstances of the case as it is presented on the affidavit evidence, have established a sufficient likelihood of success to justify the preservation of the status quo pending trial.  For all the reasons indicated previously, I am satisfied that the applicants have demonstrated a prima facie case in that sense.  Moreover, I am further satisfied that if Blue Star is not in a position to file evidence which rebuts the presumption contained in s 809(1) of the Act, there is a real likelihood that the applicants will be entitled to the final relief sought in the proceeding.  It may be that evidence from the decision‑maker will be forthcoming in the sense contemplated by Gibbs J in General Motors‑Holden’s Pty Ltd v Bowling which rebuts the presumption. 

46                        The respondent contends that the balance of convenience is influenced by this consideration.  The respondent is required as a matter of economic necessity to reduce its workforce.  Accordingly, if a decision is made to reinstate Mr Coombs and Mr Brown on an interlocutory basis pending trial, the respondent will find it necessary to terminate the employment of two other employees and thus those employees will be displaced from employment by operation of the order.  The respondent says that the effect of an interlocutory order of reinstatement on third parties unconnected with the proceedings means that the balance of convenience does not favour the granting of an interlocutory order. 

47                        It seems to me that this consideration is misplaced.  If Mr Coombs and Mr Brown have established a sufficient prospect of success in the proceeding and thus demonstrated a basis upon which there is a sufficient probability of success at trial on the question of whether their employment was terminated unlawfully, it cannot be an answer to interim remedial relief which addresses that serious question of unlawful termination to say that two other employees might be dismissed from employment for, what would be, lawful reasons relating to staff numbers, work demands and other such economic matters.  If the termination of the employment of Mr Coombs and Mr Brown occurred unlawfully, the remedy of reinstatement is a remedy available to them.  It was not open to Blue Star to terminate their employment for a reason that involved a prohibited reason and thus those employees would have remained part of the employment cohort with the result that if the cohort exceeded the requirements of the company, other employees would have been subject to a termination of employment for non‑prohibited reasons, or alternatively, those same employees would have become subject to a dismissal decision for non‑prohibited reasons. 

48                        Prima facie, Mr Coombs and Mr Brown should they succeed in the principal action, are entitled to an order for reinstatement subject to all aspects of the employment relationship applicable to the particular circumstances. 

49                        The respondent says that the applicants have led no evidence that Mr Coombs and Mr Brown will suffer any detriment beyond the loss of wages and nor is there any evidence to suggest that damages would ultimately not be an adequate remedy both in relation to the period between the dismissal and the final hearing and, ultimately, if the applicants are successful, at trial.  The terms and conditions of employment and the legislation regulating aspects of the employment relationship, ought not to be treated as, in effect, an option to comply with the law or pay damages.  An employee that demonstrates dismissal from employment for a prohibited reason is, prima facie, entitled to a restoration of the employment relationship.  Questions of trust, confidence, a working environment not degraded by personality difficulties and other such matters are relevant considerations in determining whether a restoration of employment ought to be ordered (see for example, Independent Education Union v Geelong Grammar School [2000] FCA 557).  In this case, Mr Coombs and Mr Brown seem to be under the ultimate direction and supervision of Mr Mike Walsh.  There seems to be no suggestion in any of the evidence from Ms Linnegar that the nature of the workplace or relations between these two men and other employees or Mr Walsh is unable to proceed on a sensible good working basis.  Mr McKenzie notes that the current economic environment is constrained and it is likely to be very difficult for Mr Coombs and Mr Brown to obtain other employment.  This evidence is consistent with the evidence from Ms Linnegar concerning the present circumstances confronting the company.  Although the applicants have not put on extensive evidence about their individual financial circumstances, household situation and other matters which would demonstrate the depth of any particular difficulty confronting either of them due to the loss of their employment, I am satisfied that the order for reinstatement and a restoration of the employment relationship is a sufficiently important form of order that it ought to be made on an interlocutory basis.  I am satisfied that the applicants are likely to be successful, as the evidence stands at present, in the proceeding at trial. 

50                        As to the nature of a reinstatement order in the context of an interlocutory application, Finkelstein J observed in Independent Education Union v Geelong Grammar School at [34] this:

Here, however, it must be remembered that reinstatement is a remedy that is available to Dr Holden if he ultimately succeeds in his claim against the school.  In the case of dismissal for a prohibited reason, it might be taken to be accepted that, in the ordinary case, reinstatement is the appropriate remedy.  It is true, as the High Court pointed out in Slonim v Fellows (1984) 154 CLR 505, that a court should act with some caution before it orders reinstatement because it is an interference with an employer’s ordinary rights.  But when the dismissal is for a prohibited reason, in particular a reason of the type mentioned in the provisions presently under consideration, the court should not be hesitant in granting the remedy in an appropriate case. 

51                        Accordingly, Finkelstein J restrained the respondent from giving effect to a notice of termination of the employment of Dr Holden. 

52                        The respondent further contends that the applicants unnecessarily delayed in seeking relief from the Court.  However, the termination of their employment was effected on 19 June 2009.  Saturday and Sunday was 20 and 21 June 2009.  Presumably, Mr Coombs and Mr Brown sought legal advice on or about Monday, 22 June 2009 or Tuesday, 23 June 2009.  Instructions must have been taken during those days as the solicitors for Mr Coombs and Mr Brown wrote to Blue Star complaining about the termination on 24 June 2009.  The application was filed on 25 June 2009.  There is no operative delay on the part of the applicants in seeking relief. 

53                        Accordingly, I propose to order reinstatement of David Coombs and Craig Brown to employment on the terms and conditions that applied to their employment immediately prior to their dismissal.  I propose to give leave to the parties to apply to the Court on two days notice.  It may be that circumstances emerge which cause the employer to take steps to terminate the employment of either or both of these men for reasons which do not involve a prohibited reason.  In that event, a provision for liberty to apply is necessary to enable the employer, in those circumstances, to vary or discharge the present order. 

54                        It seems to me that the interests of justice are served by listing the matter for urgent trial.  I have suggested some dates to the parties and I anticipate that the matter will be heard and determined in about six weeks time, on 17 and 18 August 2009.  The Court will notify the parties within the next few days as to a date for a directions hearing. 

55                        The first applicant gives the usual undertaking as to damages. 

56                        The costs of the interlocutory motion are reserved. 

Associate:

Dated:         6 July 2009