FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 971

THE COURT ORDERS THAT:

1.    The time for service of the originating application filed on 8 August 2011 and affidavits of Mr Kevin Adam affirmed on 8 August 2011 and Mr Justin Winter affirmed on 8 August 2011 be abridged to today.

2.    Until the hearing and determination of this application, or further earlier order, the respondent reinstate Kevin Adams to his former employment with the respondent on the same terms and conditions that applied prior to 28 July 2011.

3.    Until the hearing and determination of this application, or further earlier order, the respondent reinstate Justin Winter to his former employment with the respondent on the same terms and conditions that applied prior to 28 July 2011.

4.    Pending the hearing and determination of this application, or further earlier order, the respondent is not to effect the termination payments which might otherwise payable to Mr Adams or Mr Winter as a result of the terminations effected by letter on 5 August 2011.

5.    The applicant file and serve any amended application and statement of claim by 4.00pm on 23 August 2011.

6.    The respondent file and serve its defence by 4.00pm on 6 September 2011.

7.    The applicant is to file and serve any reply by 4.00pm on 13 September 2011.

8.    The matter be listed for directions on a date to be fixed.

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

REASONS FOR JUDGMENT

1    Until very recently a Mr Adams and a Mr Winter were employees, and long standing employees at that, of the respondent, BHP Coal Pty Ltd (BHP Coal). On 5 August 2011, in other words less than a week ago, BHP Coal summarily dismissed each of them. It should also be recorded that each of Mr Adams and Mr Winter has been a long standing member of the applicant, the Construction, Forestry, Mining and Energy Union (CFMEU). Mr Adams was, in August 2008, a month of some significance in these proceedings, and remains the vice president of that union’s Peak Downs Lodge. Mr Winter was once the secretary/ treasurer of that lodge. Thereafter, and up to and including the time of his dismissal, he was what is known as a “co-delegate”.

2    The dismissals have their origin in events which are said to have occurred in August 2008 at the mine site in central Queensland. In that month, another employee of BHP Coal, a Mr Robert Cramond (Mr Cramond), made complaints about the conduct towards him of Mr Winter and Mr Adams. Those complaints between himself, Mr Adams and Mr Winter, related to events which Mr Cramond said had occurred earlier in August 2008, out of work hours but nonetheless, in the case of Messrs Adams and Winter, in their capacity as representatives of the CFMEU. Each had a conversation with Mr Cramond arising from his resignation from that union. That resignation, it seems, was inspired by a perception on Mr Cramond’s part that an industrial agreement concluded by the union with BHP Coal had disadvantaged him financially in terms of the way in which the agreement dealt with the subsidisation of housing for workers at the mine.

3    The events concerned were the subject of investigation at the behest of BHP Coal. In particular, what was investigated were Mr Cramond’s allegations of aggression, both in language and demeanour, on the part of Mr Adams and Mr Winter respectively. The upshot of those investigations was that on 9 January 2009 BHP Coal wrote both to Mr Winter and to Mr Adams stating that, in each case, having investigated Mr Cramond’s allegations, the view had been formed that there was “insufficient evidence” to support the allegations made by Mr Cramond. There perhaps matters may have rested but for the institution of defamation proceedings by Mr Adams against Mr Cramond in the Queensland District Court in August 2009.

4    As sometimes happens with defamation proceedings, their result was not entirely as the plaintiff anticipated. In this case, by a judgment delivered on 24 June 2011, his Honour Judge McGill SC dismissed Mr Adams’ claim. His Honour’s reasons for judgment later came to the attention of BHP Coal. BHP Coal, having scrutinised those reasons for judgment, formed the view that there was cause for the dismissal of Mr Winter and Mr Adams in them and, in particular, in the findings made by his Honour concerning events long ago in August 2008. Accordingly, on 28 July 2011, it wrote to each of Mr Adams and Mr Winter requiring them to show cause why disciplinary action, which might include termination of employment, should not be taken against each of them respectively. The inspiration in terms of particularity for the show cause letters was patently the evidence and findings of fact in the District Court proceedings measured against the employer’s workplace conduct policy.

5    The CFMEU responded on behalf of each of the employees to those show cause letters by letters dated 4 August 2011. On the following day the employer, as I have already recited, terminated the employment of Mr Adams and Mr Winter. In so doing, the employer, in its correspondence to each of them, said that it had taken into account the matters raised in the union’s response letters.

6    The present application is one for interlocutory relief. In short, the union seeks an order which would restore each of Mr Adams and Mr Winter to employment pending the hearing and determination of the substantive application.

7    There was agreement between the parties that the principles to be invoked in determining that application were to consider whether there was a serious question to be tried, and whether the balance of convenience favoured the granting of the interlocutory relief. Reliance in that regard was placed on Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 and a judgment of this Court, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Bluestar Pacific Pty Ltd [2009] FCA 726, especially at [21].

8    The parties were not, in my opinion, mistaken as to the principles to be applied.

9    There is, as part of the substantive application before the Court, an allegation that each of Mr Winter and Mr Adams was dismissed for reasons which were impermissible under the Fair Work Act 2009 (Cth) (Fair Work Act), namely that they were members of officers of an industrial association for the purposes of s 346(a) of the Fair Work Act, and that they engaged in industrial activity for the purposes of s 346(b). It should be recorded that there is evidence of the engagement by the union and its members in protected industrial action at the mine. The first such action, on the evidence, took place on 18 June 2011. There was a further six hour stoppage at the mine on 14 July 2011.

10    One can see that the District Court judgment came in between the dates of these two industrial action events. Chronologically at least, the show cause was a sequel to the second such incident of protected industrial action. Whether or not there is anything other than happenstance in the revival, by recourse to the District Court judgment findings and seemingly evidence referred to, of an incident in what might be regarded by some as the distant past, is of course a matter for trial. Nonetheless, there does appear to be raised a serious question to be tried.

11    In making that observation, it is important that neither too much nor too little be made of that by those to whose attention these reasons of judgment may come. All that is entailed in such a finding is a finding that there is truly a case which ought to go to trial in terms of the issues and countervailing issues which have been raised on the hearing for an interlocutory injunction. It in no way involves any conclusion whatsoever that the allegations as made in the initiating application will be found at trial to have merit. That there was such a triable issue was not a matter of controversy between the parties, as I understood the submissions made on their respective behalves. Rather, the question was very much, as is so often the case in matters where an interlocutory injunction is claimed, where the balance of convenience lay.

12    In that regard, the employer BHP Coal was astute to offer, by way of undertaking, measures that, not unreasonably, it submitted, ameliorated the particular financial hardship to which Mr Winter and Mr Adams would be subject as a result of the terminations and pending the hearing and determination of the application. Thus there was an undertaking, particularly in respect of Mr Winter, to continue a subsidy which is paid by the employer to its workers in respect of rented accommodation. It is, at least as a matter of first impression, a generous subsidy in the sense that the rental for accommodation, doubtless reflecting demand at a mine site, is as high as $1200 per week, but a subsidy is paid to workers of $1147 per week by the employer. There was an undertaking to continue this pending the hearing and determination of the substantive application.

13    There was also an undertaking that the payment of the subsidy, or the continuance of the payment of that subsidy for that time, would be effected in such a way as not to entail any adverse revenue law consequence for Mr Winter, the intent of that being that in the event that the Commissioner of Taxation chose not, for example, given the termination, to characterise the subsidy as a fringe benefit, that whatever taxation impact that might have on Mr Winter would be met by the company. There was also an undertaking in respect of each of the employees or, at least one should say, strictly, former employees to continue the payment of their wages pending the hearing or the amount of their wages pending the hearing and determination of the application.

14    Also part of that undertaking was an undertaking not to seek to recover those sums in the event that the proceedings were determined adversely to the union and hence adversely to the interests of Mr Winter and Mr Adams.

15    It should be recorded that the reason why the undertaking in respect of subsidy did not extend to Mr Adams was not in any way motivated by any element of discrimination other than logical discrimination stemming from the fact that Mr Adams owns his own premises and hence had not hitherto been eligible when an employee for the rental subsidy.

16    Section 545 of the Fair Work Act makes particular provision in respect of orders that can be made by this Court and for that matter, the Federal Magistrates Court. By s 545(1) it is provided that the Court may, if satisfied that a person has contravened, or proposes to contravene, a civil remedy provision, make any order that the Court considers appropriate. In particular, reference is then made, without limiting the generality of s 545(1) in s 545(2) to a number of different types of order listed in paragraphs (a), (b) and (c). One of those mentioned in s 545(2)(a) is an order granting an interim injunction to prevent, stop or remedy the effects of a contravention. Another mentioned in s 545(2)(c) is an order for reinstatement of a person.

17    These orders, though, seem to me to have as their foundation a satisfaction that a person has contravened or proposes to contravene a civil remedy provision. That might be regarded as more appropriately the province of a court which has made findings after a substantive hearing rather than a court dealing with an interlocutory matter. The exception of course is in s 545(2) where there is express reference to an interim injunction and that is said to be without limiting subs (1).

18    Another interesting point to which reference was made in the submissions on behalf of BHP Coal is the dissection, in para (c), of reinstatement from the injunctive relief, interim or otherwise, for which express provision is made in s 545(2)(a). In the result though, I did not apprehend that there was any difference between the parties and that power existed to grant interlocutory injunctive relief but rather the controversy was whether it was apt in the circumstances to grant such relief. The absence of controversy was not misplaced. I do not read s 545 of the Fair Work Act as exhaustive of the powers which are exercisable by this Court. Rather, there is a more general conferral of power in s 23 of the Federal Court of Australia Act 1976 (Cth) which it must be said was also called in aid by the applicant union. That, it seems to me, is ample source of authority for the granting of interlocutory injunctive relief in an appropriate case, whatever might otherwise be the effect of s 545.

19    That necessarily then directs attention to where the balance of convenience lies. In making that observation, I am conscious that one should not compartmentalise the two considerations: serious questions to be tried and balance of convenience. They truly do interrelate in applications for interlocutory injunctive relief.

20    The case brought by the union is one which warrants trial. It is not a weak case but neither, it must be said, is the defence case, at least as one might apprehend it in a preliminary way. By that I mean that officers of a union enjoy no special immunity in respect of bad behaviour in a workplace or in relation to fellow employees. If such an officer or official engages in conduct which warrants summary dismissal then that may well, irrespective of that office, be a sequel to the engaging in of such behaviour.

21    There are difficult questions to resolve at trial in this case as to whether there is indeed proved a transgression of s 346 of the Fair Work Act.

22    As to the balance of convenience, the submission has been made on behalf of BHP Coal that one should not lightly, by what would in effect be a temporary reinstatement, interfere with the considered value judgment of a person who has managerial responsibility on the ground for, materially, the safety of a mine site.

23    It is a given that BHP Coal, through its managerial staff, has under State law very particular responsibilities for safety at the mine site. This is a relevant consideration. Also relevant in that regard though, given those responsibilities, is that each of these men has, for a period approaching three years, continued in his employment following the allegations made against him. What I make of that, therefore, is that taking, into account those undoubtedly weighty and serious responsibilities, BHP Coal has regarded it as apt to keep them in employment.

24    There is a reference in Mr Craig’s affidavit to a concern about Mr Adams and Mr Winter. That concern is that the event alleged in August of 2008 is not an isolated event and that such conduct can lead to the safety of individuals at a mine site being compromised. Objection was rightly taken to this particular part of the affidavit on the basis that it was made without foundation. The objection was not, though, pressed to finality for this reason. What the affidavit displays, openly, is a concern without foundation. I also take into account the absence of any founded concern in determining where the balance of convenience lies. In so doing, I accept at once that a festering of interpersonal relations can have serious consequences at a work site, of which management can be all too aware in terms of the hazards to site safety they present.

25    The background to this case, irrespective of where the truth of whatever occurred in August 2008 lies, seems, at least on the evidence to hand, to include an understandable concern on the part of those who have seen the benefits of union membership that those who would wish to share in those benefits contribute by membership at least. There is a counter-veiling consideration also at large which is that of freedom of choice. It is very important in the workplace that each of these views be respected and respected in a way which does not involve intimidation. Quite what happened in August 2008 is, of course, a matter for trial but I should not wish it to be thought that, in deciding this interlocutory injunction application, I am insensitive to what one might term “particular industrial realities or motivations” that can exist in a workplace in relation to questions of union membership.

26    I have already referred to the length of time which has passed since the incident in question. What has occurred since then is the outcome of a District Court defamation proceeding. The findings of fact in that proceeding, axiomatically, are not findings which would bind either this Court or the Federal Magistrates Court in determining the substantive application. That is not to say that they were irrelevant for an employer to take into account in terms of managing its industrial relations only that they are truly what the law terms res inter alios acta as far as the present substantive application is concerned and, for that matter, as far as the interlocutory injunction application is concerned.

27    What weighs with me most heavily is that, even though particularly concerning allegations were made, they were investigated at the time and the sequel to that has been a continuance for almost three years of each of these men in employment. There is no evidence before me that in that time there has been any other basis upon which they might be dismissed. Rather, the evidence to hand is that they have continued doing their work. The evidence also is that they have played a role, not a decisive role, but it is not a role to be diminished, in promoting the industrial interests of workers who are members of a union in ongoing negotiations with BHP Coal.

28    The other factor I take into account is that it will be at least six months before this case can be heard and determined whether that be in this Court or for that matter in the Federal Magistrates Court, which has concurrent jurisdiction. That seems to me to be a very long time indeed for men who are experienced, skilled workers to be idle and idle in circumstances where, for well nigh three years, there has not been pause to consider their dismissal.

29    I also take into account the psychological impact which must necessarily attend the absence from the workplace, occasioned by idleness as a result of the termination, in circumstances where there is a serious question to be tried in respect of that termination. Financially and generously it must be said, those effects are ameliorated by the undertakings but not, I think, completely in terms of the overall effect on each of these workers. Had there been an ability to offer earlier hearing dates and had the occasion for the termination not been in events so long ago, the position may well have been different. Each case, tritely, must be determined on its own particular and peculiar facts.

30    In this case, I am persuaded that, even taking into account the undertakings that I have mentioned, the case is one where there ought to be an order which, pending the hearing and determination of the substantive application or further earlier order, sees each of these men restored to his former position.

Associate:

Dated:    23 August 2011