FEDERAL COURT OF AUSTRALIA

Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union v Visy Packaging Pty Ltd (No 2) [2011] FCA 953

THE COURT ORDERS THAT:

1.    The Applicants have leave to file and serve an amended application.

2.    Pending the hearing and determination of this proceeding, or further order of the Court, the First Respondent not act on, rely on or have regard to the final written warning issued to the Second Applicant dated 18 August 2011.

THE COURT NOTES THAT:

3.    The matter is listed for a scheduling conference on 9 September 2011 at 10:30am.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    I have made an order granting injunctive relief to the applicants, and I deliver the following ex tempore reasons for judgment.

2    The applicants, the Automotive, Food, Metals, Engineering, Printing, and Kindred Industries Union and Jonathan Zwart, by an application dated 22 August 2011, pursuant to s 340 of the Fair Work Act 2009 (Cth) (“the Act”) and ss 21, 22 and 23 of the Federal Court of Australia Act 1976 (Cth) sought the following interlocutory relief against the first respondent, Visy Packaging Pty Ltd:

(1)    An order that pending the hearing and determination of this proceeding, or further order of the Court, the first respondent treat as null and void and of no effect the final written warning issued to the second applicant and dated 18 August 2011.

(2)    An order that pending the hearing and determination of this proceeding, or further order of the Court, the first respondent be restrained by itself, its servants or agents, from issuing any warning, or further warning, to the second applicant in relation to the second applicant’s conduct on or about 5 August 2011.

(3)    An order that pending the hearing and determination of this proceeding or further order of the Court the first respondent be restrained, by itself, its servants, or agents, from further investigating the second applicant’s conduct on or about 5 August 2011;

(4)    An order that pending the hearing and determination of this matter the first respondent be restrained, by itself, its servants or agents, from further suspending the second applicant from his work;

(5) Such further or other orders as to the Court seems appropriate.

3    I have made an order for injunctive relief which is a variant of the applicants’ proposed order 1. I have not made the other orders for injunctive relief sought by the applicants because counsel for Visy advised the Court that, in relation to Mr Zwart’s conduct on 5 August 2011 of which Visy is presently aware, the respondents have no intention of:

(a)        issuing any further warning to him;

(b)        conducting any further investigation of the events of that date; or

(c)        further suspending Mr Zwart.

4    In summary, the following final relief is sought in these proceedings by the applicants:

(1) Declarations that either by:

(a)    instituting an investigation into Mr Zwart’s conduct on 5 August 2011;

  (b)        suspending Mr Zwart’s employment on 8 August 2011; or

  (c)        issuing a final written warning to Mr Zwart on 18 August 2011;

Visy has contravened s 340 of the Fair Work Act 2009 (Cth) by injuring Mr Zwart in his employment, or altering his position to his prejudice, because on or about 5 August 2011 he exercised a workplace right;

(2)    Declarations that Mr Scott and Mr Street are involved in the alleged contraventions of s 340 of the Act by Visy; and

(3)    Imposition of penalties in respect of the alleged contraventions against each of the respondents.

The Evidence

5    I was provided with and read the affidavits of Jonathan Phillip Zwart affirmed on 11 August, 22 August and 29 August 2011, James Vincent Kent affirmed 25 August 2011, Bradley Collin Annson affirmed on 22 August 2011, Anthony James William Scott affirmed on 12 August 2011 and Rohan Wiltshire affirmed on 30 August 2011. The first affidavit of Mr Zwart, and the affidavit of Mr Scott, were also before the Court on an earlier application for injunctive relief heard by Dodds-Streeton J on 12 August 2011: Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union v Visy Packaging Pty Ltd [2011] FCA 1001

6    In her Honour’s reasons for judgment on that interlocutory application she sets out at [5] to [41] the events of 5 August 2011 which underpin the dispute in this matter. I will not again recount those facts. However, by way of a limited summary, I note that the dispute commenced with Mr Zwart taking steps on 5 August 2011 to safety tag and “lock out” two forklifts at Visy’s premises which had inaudible or barely audible reversing beepers. Visy says that what followed is that Mr Zwart did not conduct himself reasonably in subsequent meetings in regard to those steps, and did not properly consider other alternative approaches to the problem with the forklifts, amongst other things. Following an investigation of the events of 5 August 2011 Mr Zwart was given a final written warning by Visy on 18 August 2011.

7    The relevant legal principles are largely uncontroversial. Section 340 of the Act relevantly states:

(1) A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes, or proposes not to, or has at any time proposed, or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

8    Section 360 of the Act makes clear that the requirements of s 340 are satisfied if the existence or exercise of a workplace right is a reason for the taking of adverse action. It does not need to be the sole or dominant reason: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 at [30].

9    Section 341 of the Act provides, amongst other things, that a person has a workplace right if they are entitled to the benefit of, or have a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body.

10    Section 12 of the Act defines “workplace law” to include:

…

any other law of the Commonwealth, a State or Territory that regulates the relationships between employers and employees (including by dealing with occupational and safety matters).

It was not contested that the Occupational Health and Safety Act 2004 (Vic) (“the OHS Act”) is a workplace law within the meaning of the Act.

11    Section 342 of the Act defines “adverse action” to include an employer taking action to alter the position of the employee to the employee’s prejudice. In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at 18, the High Court construed these words in a similar provision of the Workplace Relations Act 1996 (Cth), the predecessor to this Act, as covering:

…

a broad category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.

This interpretation was applied by the Full Federal Court in Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93 at 100.

12    Section 361(1) of the Act provides for a reverse onus of proof where it is alleged that a person took action for a particular reason or with a particular intent in contravention of that Part of the Act, which includes s 340. However s 361(2) provides that the reverse onus does not apply in relation to orders for an interim injunction. The Court’s powers in the action are set out in s 545 of the Act, including interim injunctions under s 545(2)(a).

13    The OHS Act is important legislation. Section 25 of the OHS Act requires employees to take reasonable care for their own safety, and the safety of other people who may be affected by the employee’s acts or omissions in the workplace. Failure to do so can constitute a serious offence against the OHS Act. Mr Zwart had the added responsibility of being an elected Health and Safety Representative under the OHS Act, although his obligations under that Act also arise as an employee. In my view, the role of a Health and Safety Representative in the workplace is an important one.

Interlocutory Relief

14    The applicants contend that there is a strong prima facie case that Visy had taken adverse action against Mr Zwart in contravention of s 340 of the Act, by issuing him with a final written warning on 18 August 2011 because he had exercised a workplace right by his conduct in tagging and “locking out” the two forklifts. In my view, if in tagging and halting the operation of the relevant forklifts Mr Zwart acted to maintain safety and avert danger pursuant to the OHS Act, he would have an entitlement to the benefit of, or a role or responsibility under a workplace law, and thus a workplace right. Dodds-Streeton J held similarly at [57] of her Honour’s interlocutory judgment.

15    Visy accepted for the purpose of the interlocutory hearing that the final written warning did constitute “adverse action”, in that it did alter Mr Zwart’s position to his prejudice.

16    I note that the second paragraph of the final written warning provides that the misconduct alleged related to Mr Zwart’s actions on 5 August 2011 in that he caused a cessation of work when other “control mechanisms” were available. In that regard the applicants contend that it is clear from the letter and the affidavit material filed that this was a reference to Mr Zwart tagging and locking out the two forklifts because of the inaudible reversing beeper, rather than taking some other approach to the problem. Alternatives raised in Visy’s affidavit material included approaches such as operating the horn on the forklift whilst reversing it, or getting a forklift from another section of the factory.

17    The final written warning also provides that Mr Zwart failed to cooperate and engage in reasonable discussions to resolve “the issue”. The applicants contend that it is clear from the affidavit material filed that “the issue” referred to in the final written warning is Mr Zwart’s tagging and locking out the two forklifts, and not readily accepting alternative approaches to the problems with the forklifts that were proposed by management.

18    I was also referred by counsel for the applicants to the decision of the Full Court of this Court in Barclay v The Board of Bendigo Regional Institute of Technical And Further Education (2011) 191 FCR 212. This authority was accepted by counsel for Visy as creating some difficulty for the respondents in discharging their onus on the ultimate trial of this matter.

19    With regard to the reverse onus of proof found in s 361 of the Act, in my view the approach taken by Ryan J in Police Federation v Nixon (2008) 168 FCR 340 at [69] is the correct one. In construing the predecessor provision to s 361(2) of the Act his Honour held that:

I do not construe [the section] 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.

20    In all the circumstances, I consider that the applicants have a strong prima facie case that a reason for the final written warning is that Mr Zwart exercised a workplace right by tagging and locking out the two forklifts.

Balance of Convenience

21    The question of balance of convenience is more difficult. In that regard I am required to assess whether the inconvenience or injury that the applicants would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury that the respondents would suffer if an injunction were granted.

22    Visy offered an undertaking to the Court that it would not act on, rely on, or have regard to the final written warning pending the hearing and determination of the proceeding or further order, without giving Mr Zwart 72 hours notice of its intention to do so. Counsel for Visy frankly stated this notice provision was intended to enable it to rely on the final written warning should Mr Zwart commit misconduct in his employment prior to the final hearing of the matter.

23    The final written warning is clear in its terms. It is headed “Final Written Warning”. It states that it is Mr Zwart’s “final opportunity”, and it states that “further instances of misconduct will not be tolerated and may result in further disciplinary actions up to and including termination of your employment”.

24    There is in my view a real prospect that Mr Zwart would be dismissed should Visy find that he commits some misconduct in his employment prior to the final hearing, even if that misconduct was not of a type that would of itself justify dismissal if considered alone. That of course is the point of a final written warning. As Branson J found in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131, a written warning operates to make employment less secure. Her Honour held at [95] that:

Conduct engaged in by an employee who has received such a warning could lead to the termination of his or her employment although the same conduct engaged in by an employee who had not received a warning would not lead to the termination of that employee’s employment.

25    The applicants contend that Mr Zwart’s continuing employment would be rendered less secure due to the final written warning if the injunction sought is not granted. Mr Zwart complains that his employment could be terminated for doing something that would not lead to termination for an employee who had not received a final written warning.

26    In my view, this is particularly the case when as a Health and Safety Representative he may be required by the OHS Act to take steps in his employment which place him in conflict with Visy management. I do not accept that, because of the undertaking proffered by the respondents, the final written warning is of no effect. The notice provision in the undertaking proffered means that the final warning continues to hang over Mr Zwart’s head.

27    The inconvenience for Visy is not as apparent. However, Visy contends that, because of the 72 hours notice provision in its proffered undertaking, Mr Zwart cannot simply be sacked - because Mr Zwart can come to Court to object if the termination involves reliance on the final written warning. Clearly the injunction that I have granted does fetter Visy’s ability to rely on the final written warning given, at least prior to further order or final hearing. However, in weighing the balance of convenience, I note that there was no evidence before me to the effect that significant general disciplinary or management problems might arise if injunctive relief were granted. Nor was there any evidence that Mr Zwart was likely to be more difficult to manage or discipline if injunctive relief were granted. Counsel for the respondents conceded that Mr Zwart had not been the subject of any previous warnings for his conduct prior to the events of 5 August 2011.

28    Visy contended that the grant of interlocutory relief sought was tantamount to final relief. I do not accept this. The injunctive relief granted operates only until final hearing or further order. If Visy is successful in the proceeding its final written warning of 18 August 2011 will be of full effect.

29    I have granted injunctive relief only until the earlier of further order or final hearing because, whilst I consider the balance of convenience presently favours the applicants, if :

(a)    Mr Zwart commits an act of employment related misconduct in the interim; or

(b)    there develops some significant general management or disciplinary problem at Visy because of the relief granted,

then it may be that the balance of convenience will have shifted. An order in the terms made means that Visy can apply to lift or vary the injunctive relief should there be some significant change in circumstances.

30    Further, in my view, this order does not stop Visy from taking appropriate steps to deal with any future misconduct by Mr Zwart. It operates only to restrain Visy in acting on, relying on, or having regard to a final written warning which is arguably a breach of the Act. Should Mr Zwart commit an act of employment related misconduct prior to final determination of this matter, that issue can be dealt with by Visy on its merits without having regard to the final written warning.

Associate:

Dated:    6 September 2011