FEDERAL COURT OF AUSTRALIA

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Phillips Engineering Aus Pty Ltd [2010] FCA 611

THE COURT NOTES THAT:

1                    The applicant, by its Counsel, undertakes to the Court:

(a)          to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and

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

UPON the applicant giving to the Court the undertakings noted at par 1 above, THE COURT:

2              GRANTS leave to the applicant to file in Court and to read and rely upon the affidavit of Daniel Nobbs sworn on 15 June 2010.

3              GRANTS leave to the applicant to file in Court and to read and rely upon the affidavit of Daniel Wallace sworn on 14 June 2010.

4              GRANTS leave to the applicant to file in Court and to read and rely upon the affidavit of Cory Wright sworn on 15 June 2010.

5              GRANTS leave to the applicant to file in Court and to read and rely upon the affidavit of Adam Walkaden sworn on 15 June 2010. 

6              ORDERS that the proceeding be adjourned to Wednesday, 23 June 2010 at 9.30 am before the Docket Judge.

7              GRANTS liberty to all parties to apply on three days’ notice or on such shorter notice as a Judge of the Court might direct.

8              RESERVES the costs of the matter to date.

9              MARKS as MFI 1 on the Application for Interlocutory Relief the applicant’s Outline of Submissions.

10          MARKS as Exhibit A on the Application for Interlocutory Relief a facsimile transmission dated 15 June 2010 received from the first respondent.

11          ORDERS that, up to and including the final determination of this proceeding or until further order, the first respondent reinstate Mr Daniel Nobbs to his position as a boilermaker employed by the first respondent upon the same terms and conditions as applied to that employment as at 31 May 2010. 

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The applicant is an organisation of employees registered under the Fair Work Act 2009 (Cth) (the Act).  It has rights under the Act to bring various applications.  Under s 540(2) and s 545(1) of the Act, a registered employee association may apply for such orders as the Court considers appropriate if the Court is satisfied that a person has contravened a civil remedy provision in relation to an employee if the employee is affected by the contravention and if the association is entitled to represent the industrial interests of the employee.  This entitlement is subject to certain exclusions which do not apply in the present case.  Under s 545(2)(c) of the Act, orders which the Court may make include an order for reinstatement of a person.

2                     Daniel Nobbs is an employee who has been affected by an alleged contravention of the Act by the respondents.  The applicant is entitled to represent his industrial interests.  Until very recently, Mr Nobbs was an employee of the first respondent (Phillips). 

3                     The applicant alleges that Mr Nobbs’ employment was terminated on 3 June 2010 for reasons which are prohibited reasons within the meaning of the Act. 

4                     Part 3-1 of the Act makes it unlawful (inter alia) for employees to be subjected to adverse action for certain reasons, including the exercise of workplace rights or engaging in industrial activities (see ss 340, 341, 342, 346 and 347).  Adverse action is defined in s 342 of the Act and occurs where the employer:

(a)                dismisses the employee;

(b)               injures the employee in his or her employment;

(c)                alters the position of the employee to the employee’s prejudice; or

(d)               discriminates between the employee and other employees of the employer.

5                     It is said that Mr Nobbs’ employment was terminated because of his role in representing his workmates at Phillips in their attempt to negotiate a new industrial agreement with Phillips and because he “called in” the applicant when negotiations had halted.

6                     The application before me at the moment is for an interlocutory order for the reinstatement of Mr Nobbs.  A final order for reinstatement together with other appropriate relief is sought in the Application. 

7                     At the time of his dismissal, Mr Nobbs was told by the second respondent, who is the principal of Phillips, that he was being dismissed because:

We have got no work for a second class welder and have to let you go immediately.

8                     There is a deal of evidence which puts this statement and the conduct of the respondents into context.  This context indicates quite strongly that the true reasons for Mr Nobbs’ dismissal were otherwise and that the reason given by the second respondent was given in order to mask the respondents’ real intent.  That evidence supports the applicant’s contention that Mr Nobbs was dismissed for the reasons explained at [5] above.  These are prohibited reasons under Part 3-1 of the Act.  

9                     The Court received a communication by facsimile earlier this morning, apparently from Phillips, indicating that the respondents wished to have the matter adjourned.  Phillips did not appear before me today and did not see fit to retain a lawyer or lawyers to press for the adjournment which it apparently wanted.  Phillips was served with the Application and most of the affidavit material on Friday, 11 June 2010.  The matter is urgent.  I am entitled to proceed in the absence of the respondents and, in the circumstances, propose to do so. 

10                  In order to sustain the relief sought, the applicant must demonstrate a serious question to be tried and that the balance of convenience and justice favours the grant of relief.  Ms Howell, who appears for the applicant, has provided to me a written Outline of Submissions in support of the interlocutory relief which is sought by the applicant.  I shall mark that Outline as MFI-1 and place it with the Court file.  In that Outline, Ms Howell has analysed the relevant statutory provisions and the evidence tendered before me in support of her client’s application.  It is not necessary or desirable at the moment to traverse this material.  For present purposes, I accept the substance of the submissions made in MFI-1.  

11                  The applicant, in my view, has demonstrated the necessary serious question to be tried.  It has demonstrated that it has a strong case for the final relief which it seeks.

12                  The balance of convenience and justice favours reinstatement.  Until recently, Mr Nobbs had a satisfactory work history with Phillips and the company appears to have sufficient work to justify his ongoing employment.  In addition, as the case stands at the moment, there is compelling evidence of a contravention of the Act on the part of the respondents.  I appreciate that the Court is often reluctant to make interlocutory reinstatement orders because of the difficulties presented to both parties by an enforced continuation of a close relationship such as that of employer/employee.  But the alleged contravention in the present case is serious and Mr Nobbs needs employment to support his ongoing commitments.  Times are difficult in Australia at the moment and I doubt that damages ultimately will prove to be an adequate remedy.

13                  For these reasons, I propose to grant the relief sought. 

Associate:

Dated:         17 June 2010