FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd

[2012] FCA 563

UPON HENK DOEVENDANS undertaking to the Court, without any admission as to wrongdoing, pending the final hearing and determination of this matter not to:

1.    Use the word “scab” whilst in attendance at the Saraji Mine Site, or whilst in attendance at any protest organised by the applicant.

2.    Hold up or wave any signs or placards bearing the word “scab” whilst in attendance at the Saraji Mine Site, or whilst in attendance at any protest organised by the applicant.

3.    Use the word “scab” towards any person he knows or believes to have attended for work at the Saraji Mine Site during any period in which the applicant has organised protected industrial relation.

THE COURT ORDERS THAT:

1.    Subject to Order 2, until the hearing and determination of this application or further order, the respondent reinstate Henk Doevendans to his former employment with the respondent on the terms and conditions that applied prior to 21 May 2012.

2.    The reinstatement of employment effected by Order 1 pending the trial and determination of the matters in controversy, effects a reinstatement of all incidents of the employment agreement including any entitlement subsisting in the employer to direct Henk Doevendans not to attend the workplace from time to time or at all pending the determination of the proceeding, having regard to the contended conduct on the part of Mr Doevendans of displaying on 16, 17 and 19 February 2012 to persons entering and leaving the Saraji mine near Dysart in Queensland, a sign depicting the descriptor “scabs”, among any other considerations relevant to the employer’s direction.

3.    Liberty to apply on two days notice.

4.    Costs reserved.

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

REASONS FOR JUDGMENT

1    On Monday, 21 May 2012, the respondent, BHP Coal Pty Ltd (“BHP Coal”), terminated by letter, effective that day, the employment of Mr Henk Doevendans.

2    The applicant (“CFMEU”) contends that BHP Coal did so in contravention of s 340 and s 346 of the Fair Work Act 2009 (Cth). In these proceedings the applicant seeks, by way of final relief, a declaration that BHP Coal’s conduct in terminating Mr Doevendans’s employment contravenes those sections of the Act because his employment was terminated for the reason that he sought to exercise a workplace right; he is and was a member of an industrial association; he is an officer of an industrial association; and he had engaged in industrial activity and proposed to engage in further industrial activity.

3    The CFMEU also seeks final orders for reinstatement of Mr Doevendans on the terms and conditions of employment that prevailed prior to 21 May 2012.

4    A range of further final orders are sought in relation to compensation and penalties.

5    The present proceedings concern an application for an interlocutory order in these terms:

… until the hearing and determination of this application, or further order, the Respondent reinstate Henk Doevendans to his former employment on the same terms and conditions that applied prior to 21 May 2012.

6    Final orders are sought under s 545 of the Fair Work Act. The applicant seeks an interlocutory order under s 545(2)(a) of the Fair Work Act and s 23 of the Federal Court of Australia Act 1976. The CFMEU brings the proceedings under ss 539 and 540(2) of the Fair Work Act.

7    The application for the interlocutory order was heard on 24 May 2012. An interlocutory order was made on 25 May 2012. The parties were advised that reasons in support of the interlocutory order would be published early the following week. These are those reasons.

8    Mr Doevendans deposes to these background facts as set out at [9] to [12].

9    Until 21 May 2012, Mr Doevendans had been employed by BHP Coal pursuant to a Workplace Agreement of 2007, at the Saraji Mine near Dysart in Queensland. Mr Doevendans had been employed by BHP Coal for 24 years. He has been a member of the CFMEU for approximately 24 years and a member of the Saraji Lodge Executive for approximately 10 years. He is Vice President of the Saraji Lodge.

10    The CFMEU has been negotiating with BHP Coal about a new enterprise agreement. From mid-2011, the CFMEU members commenced taking protected industrial action against BHP Coal. During some periods of protected industrial action, the CFMEU organised protests outside the Saraji Mine. These protests involved protesters standing some distance from the entrance to the mine on either side of the entry road about three metres back from the roadway behind water barriers. For the purposes of the protest at the Saraji Mine, the CFMEU obtained a number of signs bearing particular slogans. One of those signs read, “No principles SCABS No guts”. The CFMEU organised for eight of these signs to be produced and four of them were allocated to the protest at the Saraji Mine. The signs were used at the Saraji protest from August 2011 and were held up during the protest when cars passed along the road to and from the mine entrance.

11    Managers from BHP Coal observed the protest from a distance of 20 to 30 metres on a number of occasions. Private security guards were located between the mine entrance and the protest, throughout the stoppage and took photographs from time to time. In February 2012, the police attended the Saraji protest and advised representatives of the CFMEU that BHP Coal had complained about the use of offensive language. The police advised the CFMEU representatives present that they did not consider the word “scab” to constitute “offensive language”. On 12 April 2012, Mr Doevendans was called to a meeting where he was given a letter dated 12 April 2012 which contained allegations that he had on 16, 17 and 19 February 2012 waved a sign that read, “No principles Scabs No guts” at cars entering and leaving the Saraji Mine. Mr Doevendans responded at a meeting on 4 May 2012 with Mr Brick and Mr Hamilton of BHP Coal and said that he did not recall the specific instances reflected in the letter of 12 April 2012 but that at various times he had held up or waved such a sign at the protest. On 4 May 2012, BHP Coal wrote to Mr Doevendans advising him that so far as the employer was concerned, the allegations concerning that conduct had been established as a result of the employer’s investigations. BHP Coal invited Mr Doevendans to show cause why his employment ought not be terminated. On 11 May 2012, the CFMEU responded to the show cause letter on behalf of Mr Doevendans. On 21 May 2012, Mr Doevendans was required to attend a meeting at which his employment was terminated effective that day.

12    At para 72 of his affidavit, Mr Doevendans says that it is likely that he was present at the Saraji protest on 16, 17 and 19 February 2012 (at, I infer, the times alleged in the letter of 12 April 2012) and that “[i]t is also likely that I would have held up the sign as alleged”.

13    The decision to terminate Mr Doevendans’s employment was taken by Mr Geoff Brick.

14    Mr Brick deposes to these matters set out at [15] to [26].

15    Mr Brick is the General Manager of the Saraji Mine which is owned and operated by BHP Billiton Mitsubishi Alliance (“BMA”). Mr Brick says that he first became aware of Mr Doevendans’s conduct at the protest action at the Saraji Mine in February 2012 as a result of concerns that had been raised with him directly by some members of the Human Resources Department (“HRD”) in the period between 15 February 2012 and 19 February 2012. Mr Brick says that he recalls a number of members of the HRD approaching him and saying that they felt intimidated as a result of the sign bearing the word “scab” being waved at them as they drove through the protest line on the way to work. Mr Brick says that he complained about that matter to the President of the Saraji Lodge.

16    Mr Brick directed Mr Hamilton to investigate the allegations concerning Mr Doevendans’s conduct in holding up the sign in question. Mr Brick says this in his affidavit:

20.    I personally find the use of the word “Scab” to be extremely derogatory and offensive. Based on my experience in the mining industry, I am aware that the word “Scab” has historically been used in order to intimate, humiliate and incite hatred towards people who choose to exercise their lawful right not to participate in protected industrial action.

21.    Use of the word “Scab” is entirely inappropriate and unacceptable. As a General Manager of Saraji Mine, I have an obligation to employees to ensure their safety and wellbeing. In my view, use of the word “Scab” constitutes inappropriate conduct, bullying and harassment contrary to the BMA Workplace Conduct Policy (“Conduct Policy”). Accordingly, I cannot condone the use of the word “Scab” in the workplace, as use of such an offensive, intimidating and humiliating word has the potential to cause employees and other persons at the Saraji Mine to feel harassed or bullied. Further, use of the word “Scab” is completely contrary to the culture that I am developing and have developed at the Saraji Mine.

17    Mr Brick says that “[i]n light of the potential harm to employees and other persons at the Saraji Mine”, he expected Mr Hamilton to investigate what Mr Brick calls the “serious allegations” about Mr Doevendans’s conduct, and establish the facts. Mr Brick says that because he regarded the allegations as serious matters, he thought it appropriate to meet with Mr Doevendans and the Union representatives and outline the conduct allegations.

18    Mr Brick met with Mr Doevendans and a union representative on 12 April 2012. Mr Hamilton was present. Mr Brick outlined to Mr Doevendans the conduct allegations. He handed Mr Doevendans the letter of 12 April 2012 earlier mentioned. Although further meetings were to occur not long after that meeting, a further meeting ultimately took place on 4 May 2012 between Mr Brick, Mr Hamilton, Mr Doevendans and a representative of the union, Mr Hughes. Mr Brick says that Mr Doevendans conceded that he had held and waved the sign as described, during the course of the protest action on 16, 17 and 19 February 2012; he understood that the word “scab” was not acceptable in the workplace; and that he had told other union members that use of the term was unacceptable in the workplace.

19    Mr Brick says that Mr Doevendans took the position that the workplace did not extend beyond the Saraji Mine mining lease and that the Queensland Police had taken the position, after having attended the protest site and having inspected the sign, that the sign in question was not “offensive”.

20    Mr Brick says that having regard to the concessions made by Mr Doevendans described at [18], he took the view that the conduct allegations were made out. Mr Brick says that he formed the view that the conduct was inappropriate and unacceptable workplace conduct inconsistent with the Charter and Conduct Policy adopted by BMA and BHP Coal. Mr Brick also says that he was satisfied that the conduct allegations were “sufficiently connected with work”. Mr Brick says that he determined that it was appropriate in all the circumstances to require Mr Doevendans to show cause why his employment should not be terminated. Mr Brick says that in reaching this decision he was not influenced by any considerations relating to Mr Doevendans’ union membership, his industrial activities, his status as the Vice-President of the Saraji Lodge of the CFMEU or his status as a Site Safety and Health Representative (SSHR representative) at the Saraji Mine.

21    The meeting on 4 May 2012 reconvened later that afternoon. Mr Brick handed Mr Doevendans a letter dated 4 May 2012 requiring him to show cause why his employment should not be terminated. Mr Brick told Mr Doevendans that he was stood aside on full pay and directed not to attend work until after the conclusion of the show cause process.

22    Mr Brick says that Mr Doevendans then handed him a letter dated 19 April 2012. Mr Brick says that he had not previously received that letter or any notice of it. Mr Brick says he considered the letter after the meeting. Mr Brick says that further exchanges occurred. Then, in the period from Saturday 12 May 2012 to Thursday 17 May 2012 Mr Brick gave consideration to the matters raised in a response letter dated 11 May 2012 to the show cause letter.

23    Mr Brick says that he was very conscious of the significant impact termination of employment could have upon Mr Doevendans particularly having regard to his considerable length of service with BHP Coal; the consideration that Mr Doevendans was not on any “step” under any disciplinary procedure in the Workplace Agreement; his accommodation arrangements in Dysart; his family, personal and financial circumstances; and, his future employment opportunities. Mr Brick says that notwithstanding these considerations, Mr Doevendans had conceded to him that he had engaged in the conduct; he had engaged in the conduct on multiple occasions; and, he knew and understood that the use of such a term involved serious breaches of the Charter and Conduct Policy.

24    At para 60 of his affidavit, Mr Brick says this:

As the General Manager of the Saraji Mine and the person responsible for the safety and health of employees and other persons at the Saraji Mine, I cannot condone such serious, inappropriate and unacceptable conduct. Such behaviour is inconsistent with the culture I am developing and have developed at the Saraji Mine. I turned my mind to whether if I took disciplinary action other than termination of his employment, Henk Doevendans could be rehabilitated to a just culture and his employment relationship with the Respondent salvaged …

25    Mr Brick says that it was clear to him that a final warning would not achieve the end described above. Mr Brick says that he was satisfied that the conduct was inappropriate and nothing in the response letter mitigated against taking a decision to terminate Mr Doevendans’ employment. That decision was taken and communicated to Mr Doevendans on 21 May 2012 at 5.15 p.m. in a meeting. Mr Doevendans was handed the letter dated 21 May 2012 at that meeting.

26    As to the termination decision, Mr Brick says this:

Henk Doevendans’ union membership, industrial activities, status as the Vice President of the Saraji Lodge of [the CFMEU] or status as a SSHR at the Saraji Mine had no impact whatsoever on my decision to terminate his employment. Those matters were completely irrelevant to my decision. My decision was solely based on the substantiated and admitted allegations about Henk Doevendans’ offensive, humiliating, intimidating and inappropriate conduct and his flagrant and deliberate breaches of the Charter and Conduct Policy.

27    Mr Greg Hamilton deposes to these matters set out at [28] to [39].

28    Mr Hamilton is employed by BHP Coal as the Manager of Human Resources at the Saraji Mine owned and operated by BMA. Some employees have participated in protest action adjacent to the entrance to the Saraji Mine during periods of protected industrial action since about 3 August 2011. Mr Hamilton says that when he first attended a protest action at about 5.00am on 3 August 2011 he saw, from an observation area set up at the entrance to the Saraji Mine, a number of signs erected with the word “scab” written on them. As to the term “scab”, Mr Hamilton says this in his affidavit:

9.    I personally find the use of the word ‘Scab’ to be extremely derogatory and highly offensive, as in my experience based on my years working in human resources, it is a term which is used to intimidate and incite a negative and hateful reaction against people who choose to exercise their lawful right to attend work during periods of protected industrial action. It is not a term of endearment.

10.    Due to my experience in the coal mining industry, I am aware that the word “Scab” is of historical significance. The word “Scab” has historically been used by union members to isolate, ostracise and incite hatred against non-union members and people who cross union ‘picket lines’. In my opinion, based on my experience in the coal mining industry, the word ‘Scab’ has historically been used to imply that non-union members and people that cross union picket lines are different, of bad character and of lower status than union members.

11.    I recall that the Respondent has held many briefing sessions and a company-wide communication was sent on 20 April 2011 by Jon Evans, Head of Production – Mining of the Respondent, confirming that the use of the word ‘Scab’ is unacceptable.

29    Mr Hamilton annexes to his affidavit a copy of Mr Evans’s company-wide communication of 20 April 2011.

30    On 3 August 2011, Mr Hamilton spoke to Mr Wayne Woodhouse, the President of the Saraji Lodge of the CFMEU. He told Mr Woodhouse that the signs using the word “scab” were offensive and requested Mr Woodhouse to take them down. Mr Woodhouse told him that the signs belonged to State Officials of the CFMEU and since they were not his signs, he was not going to remove them.

31    Mr Hamilton says that BMA has attempted to address the use of the word “scab” or “scabs” (and the particular language of the sign in issue in this application), at protest demonstrations adjacent to BMA mine entrances, by taking up the issue with “Single Bargaining Unit” (“SBU”) negotiating with BMA in relation to workplace conditions at BMA’s various mines.

32    On 29 July 2011, BMA’s Manager of Employee Relations wrote to the SBU representatives, relevantly, in these terms:

Single Bargaining Unit

c/- Steve Smyth/Glenn Hall/Rohan Webb

…

I refer to the demonstration that occurred at the entrance to the Norwich Park mine on 27 and 28 July 2011.

…

BMA has been made aware of threatening, intimidating and otherwise inappropriate conduct by the demonstrators. On this basis, the demonstration which your unions organised, managed and co-ordinated was not peaceful.

In particular BMA understands that:

•    employees and contractors were told to [a range of extravagant language is then recited]. The words ‘you’re scabs, you’re scabs, you’ve got no morals’ were also yelled at employees and contractors as they entered or exited the mine;

•    banners with the words “No principles Scabs No guts” were displayed at the entrance to the mine;

…

                                [emphasis added]

BMA is very concerned about your union’s organisation and involvement in the offending conduct and the effect that the conduct is or may be having on BMA’s employees and contractors. BMA has received complaints from employees and contractors about the threatening and intimidating nature of the conduct at the demonstration.

BMA is particularly concerned about your union’s organisation of an involvement in the offending conduct in the light of written assurances you provided on 11 June 2011 – that there would be no interference with contractors and labour hire workers continuing to work during the notified stoppages.

BMA’s concerns about the offensive nature of the conduct were raised with Brad Crompton, the CFMEU Lodge President – Norwich Park on the afternoon of 27 July 2011. In particular, BMA representatives advised Mr Crompton that the conduct of those participating in the demonstration was contrary to the earlier assurances received about the nature of the demonstration.

…

While BMA recognises that peaceful demonstrations and protected industrial action may occur, BMA requires each of your unions:

…

•    to provide a written undertaking that any future demonstrations that it organises or engages in will only be peaceful demonstrations, and will not involve threats, intimidation or any other prejudicial conduct against employees and contractors who are exercising their rights to perform their normal duties. This includes confirmation that you will refrain from:

•    displaying offensive banners …;

•    calling employees and contractors “scabs”;

…

33    BMA received no response to that letter.

34    On 2 August 2011, BMA again wrote to the SBU referring to the letter of 29 July 2011 and noted that no undertaking had been given. On 3 August 2011, the SBU responded and gave a “commitment” in the following terms:

… members involved in any further similar assemblies will not prevent, hinder or obstruct the entry or exit of people or vehicles to or from the mine site. Neither will members threaten or cause any person to fear for their safety or the safety of their property. Members will take care for their own safety and the safety of others.

35    The letter from the SBU raised a number of other issues one of which, relevant for present purposes, is reflected in BMA’s response of 5 August 2011 in these terms:

●    we dispute your assertion that the offending conduct we identified in our letter dated 29 July 2011 is consistent with the right of your members to ‘peacefully assemble’. We maintain that the continuing reference to ‘scabs’ in banners and signs (and ‘dialogue’) is offensive, intimidating and threatening conduct, which has no place under the rules regulating acceptable conduct as part of the bargaining process.

36    BMA’s responsive letter of 5 August 2011 also said this:

The reason we pressed so forcefully for undertakings in our earlier correspondence related to our concern regarding the organisation and control of further ‘demonstrations’. Our concerns have unfortunately been realised in relation to the ongoing ‘demonstration’ outside the Saraji mine, despite the terms of your earlier commitment referred to above.

37    Mr Hamilton deposes two statements prepared by Ms Sarah Murphy, a Solicitor employed by Freehills, concerning her observations arising out of her attending the protest action at the Saraji Mine on Thursday, 16 February 2012 and Friday, 17 February 2012. Similarly, Ms Thea Chesterfield, a Freehills Solicitor, attended the protest at the Saraji Mine on 16, 17 and 19 February 2012. She also prepared a statement. Both statements are annexed to Mr Hamilton’s affidavit. Mr Hamilton explains the basis upon which those solicitors were able to identify Mr Doevendans.

38    Mr Hamilton says that having regard to those statements, Mr Hamilton accepted that Ms Murphy had seen Mr Doevendans hold and wave a sign with the words “No principles Scabs No guts” at cars entering and leaving the mine between 4.25am and 6.55am on 16 February 2012 and 4.30am and 7.05am on 17 February 2012. Ms Chesterfield says she saw Mr Doevendans hold and wave the sign at a silver vehicle leaving the mine at 4.42pm on 19 February 2012 and at a utility vehicle as it drove past the protest area at 6.03pm.

39    Mr Hamilton deposes in his affidavit to the subsequent chronology of events already described.

40    In Mr Brick’s affidavit, he refers to his consideration of the personal circumstances confronting Mr Doevendans when considering whether Mr Doevendans’s employment ought to be terminated having regard to the conduct allegations. Those personal circumstances are more particularly set out at paras 89 to 97 of Mr Doevendans’ affidavit in support of the interlocutory order.

41    They are these:

89.    I am married and have three children Laycee, 14, Jayden 17, and Mitchell 19. My wife and I are solely responsible for providing for our children. All of my children still live at home.

90.    My wife is employed at the local bakery on a part-time basis. She works approximately 18 hours per week. She earns approximately $340 per week after tax.

91.    My wife and I have a housing loan for our property in Dysart. The monthly loan repayment is $1,500. Without the income earned from my employment my wife and I would be unable to afford the loan repayments.

92.    In addition to mortgage repayments, I also have to pay school fees for my two youngest children. The school fees are approximately $1,000 per year. Without the income earned from my employment, my wife and I would be unable to continue to afford to send our children to their school.

93.    I would also have great difficulty meeting the usual cost of living expenses that are associated with a family of five.

94.    The likely outcome of the termination of my employment will be that my wife and I will be forced to sell out home as we cannot meet the mortgage repayments. Given the high rents that are currently being charged in Dysart, if we sell our house we will have to move to another more affordable location. This would be devastating to my family.

95.    If we had to move, Laycee would have to leave school and the friends she has known her entire life. This would be extremely distressing for Laycee.

96.    My daughter Jayden is in her final year at Dysart State High School. As part of her Grade 12 studies she is also undertaking a Certificate 2 in Business. As part of this course she works one day a week at Cooee Electrical in Dysart. She also works at the Jolly Collier Hotel in Dysart as a part-time job. If we have to move, Jayden will have her final year of studies disrupted, lose her part-time job and lose the potential of on-going employment at the conclusion of her traineeship at Cooee Electrical.

97.    Mitchell is currently a fourth year apprentice employed by MRAEL at the Saraji Mine. Mitchell has recently moved to the Saraji Mine due to the closure of the Norwich Park Mine. I have been looking forward to working with Mitchell. Although Mitchell will be able to remain in Dysart … Mitchell would no longer be able to reside in the family home.

42    Mr Doevendans also says, in relation to the events of 12 April 2012, that the apprehension of loss of employment caused him considerable stress. At paras 67 to 70 of his affidavit Mr Doevendans describes the stress he says he suffered arising out of the meeting on 12 April 2012 and being handed the letter of 12 April 2012 coupled with the suggestion that a further meeting should take place on 19 April 2012. Mr Doevendans says that he immediately felt stressed; suffered from diarrhoea as a result of the stress; saw the doctor the next day; was told that he was unfit to attend work due to the stress; and, was prescribed medication to take for the stress. At para 70, Mr Doevendans says this:

It was more stressful to me spending time at home [than] being at work. During my sick leave I was hanging around the house, thinking about the underlying issue and what is going to happen to my job. There is not much to do at home, other than house work. I would much rather be back at work doing something [than] sitting around thinking about my job. It just makes me feel depressed and more stressed.

43    I have recounted these factual matters not, obviously enough, for the purpose of making, on an interlocutory application of this kind, any finding of fact about any of the matters in controversy, but simply to give content and context to the conduct allegations; content and context to some of the practical aspects of where the burden might fall within a workplace should an interlocutory reinstatement order be made in circumstances where it seems to be common ground that it is very likely that Mr Doevendans held and waved the sign in issue in the way suggested; and to identify some aspects of the balance of convenience.

44    Before turning to the formulation of the case to be made at trial by the CFMEU, the principles governing the present interlocutory application and the ultimate assessment of the balance of convenience factors, these further matters should be noted.

45    First, Mr Doevendans was paid an annual wage of $120,000. Upon termination of his employment, he was paid a termination payment of $15,000. Of that sum, accrued entitlements represented $5,000. The remaining $10,000 represented four weeks wages.

46    Second, BHP Coal concedes that the CFMEU has made out a serious question to be tried, a contravention of particular provisions of the Fair Work Act.

47    Third, BHP Coal contends, however, that the exercise of the discretion as to whether an interlocutory reinstatement order ought be made, should take into account these considerations. First, Mr Doevendans has already received four weeks wages and in the event that a trial might be conducted reasonably soon, Mr Doevendans is not prejudiced in terms of the financial dislocation the subject of paras 89 to 97 of his affidavit quoted at [41] of these reasons. In the event that a trial cannot be conducted and determined within a short period of time, with the result that Mr Doevendans would then be exposed to the dislocation he describes consequent upon his loss of wages, the interim position is best protected, it is said, by an order that BHP Coal continue to pay him an amount equal to the lost wages until the trial and determination of the matter, subject to the broader consideration of when trial dates might be reasonably available. Second, if an interlocutory reinstatement order is to be made, BHP Coal would resist being constrained in exercising a right under the Employment Agreement to require Mr Doevendans not to attend work (whilst nevertheless continuing to receive the relevant entitlements) having regard to the impact in the workplace of some fellow workers having been described by Mr Doevendans as scabs, as those individuals sought to exercise a right to attend the workplace and work in the workplace. Third, although the CFMEU contends that Mr Doevendans will be subjected to the stress of not engaging in work and not enjoying the benefit of daily working relationships and engagement with fellow workers day to day, should an interlocutory reinstatement order not be made, Mr Doevendans has not deposed to any apprehension of such stress, so far as the termination decision of 21 May 2012 is concerned, and such stress might be ameliorated by the proposed alternative interlocutory order addressing relief from the financial pressures of a loss of wages pending trial.

48    Fourth, interim payments simply of an amount equal to the lost wages pending trial may prejudice the accrual of other entitlements which may be dependent upon a subsisting employment relationship, such as contributions to superannuation.

49    Fifth, it is not in contest that Mr Doevendans has been a member of the Saraji Lodge Executive of the CFMEU for 10 years or that he has been Vice President on a number of occasions during that period, and that he is currently the Vice President of the Saraji Lodge of the CFMEU. I infer that in these roles, Mr Doevendans assumes a degree of leadership on behalf of the CFMEU and is perceived to be a person that the cohort of employees would generally regard as a person held out by the CFMEU as assuming leadership roles and leadership responsibilities. Although findings of fact must necessarily be made at trial about whether Mr Doevendans held up the sign bearing the words “No principles Scabs No guts” on 16, 17 and 19 February 2012, the burden of the evidence seems to strongly suggest, as Mr Doevendans essentially concedes, that he did hold and wave the sign on the days in question at the times suggested. It necessarily follows that Mr Doevendans thought it appropriate, at a place immediately adjacent to the entrance to the Saraji Mine, to describe persons (other employees and contractors) entering and leaving the mine and passing through the protest as people with no principles; as people with no fortitude in not refusing to work; and, as scabs, notwithstanding that the important freedom of association protected by the Fair Work Act symmetrically recognises (and the Fair Work Act protects) a freedom not to associate and a freedom to work without association.

50    Sixth, although emphasis is placed by Mr Doevendans on the notion that the conduct of holding and waving the sign did not, in any event, occur in the workplace and, in that sense, is unconnected with his employment, it seems to be common ground that the protest occurred close to the entry and exit point to the Saraji Mine and the conduct concerning the use of the sign occurred at the protest site.

51    Seventh, employees affected by conduct which describes those employees working in a relevant workplace as people with no principles, no fortitude and otherwise to be regarded as scabs, are unlikely to have the resources to deal with that conduct individually and it inevitably falls to the employer to ensure that steps are taken to maintain a workplace free of such conduct.

52    Eighth, although emphasis is also placed by Mr Doevendans on the opinion expressed by one or more police officers that the language of the sign did not involve the use of offensive language, the police officers were, no doubt, considering that question and expressing a view about the matter from the perspective of a peaceful protest and whether any laws of the State of Queensland might have been contravened in the relevant public circumstances by the use of any particular language, rather than the position as between Mr Doevendans and other employees and contractors inter se, by reason of the use of a sign bearing the description “No principles Scabs No guts”.

The statutory scheme

53    Section 340(1)(a) of the Fair Work Act provides, relevantly, that a person must not take adverse action against another because that other person has a workplace right or has exercised a workplace right or proposes to exercise a workplace right. A person enjoys a workplace right if the person is entitled to the benefit of a workplace law or has a role or responsibility under a workplace law. A person also enjoys a workplace right if they are able to initiate or participate in a process or proceeding under a workplace law. Section 341(2) defines such a process or proceeding as one including protected industrial action.

54    Section 346 of the Fair Work Act provides, relevantly, that a person must not take adverse action against another because that other person is an officer or member of an industrial association (s 346(a)) or such a person engages or has at any time engaged in or proposes to engage in industrial activity within the meaning of s 347(a) or (b) of the Fair Work Act: s 346(b).

55    Section 347(b) provides that a person engages in industrial activity if the person organises or promotes a lawful activity for or on behalf of an industrial association; or encourages or participates in a lawful activity organised or promoted by an industrial association; or represents or advances the views, claims or interests of an industrial association; or seeks to be represented by an industrial association: s 347(b)(ii), (iii) and (v).

56    An employer takes adverse action against an employee if the employer dismisses the employee: s 342(1); Item 1(a).

57    The prohibition in s 346(a) upon an employer dismissing an employee because he or she is or was an officer or member of an industrial association is not confined in its scope to mere clinical membership or the holding of office but extends to dismissal by reason of participatory activities undertaken by the person associated with membership or office: Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14 at [14] and [19] per Gray and Bromberg JJ. Section 360 of the Fair Work Act provides that a person takes action for a particular reason if the reasons for the action include that reason. It is therefore sufficient, in order to establish a contravention of ss 340 or 346 to show that the dismissal of the employee occurred for reasons that include a prohibited reason under those sections. The prohibited reason need not be the substantial or dominant reason: MUA v Geraldton Port Authority [1999] 93 FCR 34; McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828 at [344] (having regard to the like provisions in the earlier legislation). The prohibited reason must be an operative reason: Australian Workers’ Union v John Holland Pty Ltd (2000) 103 IR 205.

58    Section 361(1) provides that if an allegation is made, in an application in relation to a contravention of a provision of Pt 3-1, that a person took action for a particular reason, and taking action for that reason would constitute a contravention of the relevant provision, it is presumed in proceedings arising from the application, that the action was taken for that reason, unless the person proves otherwise. Section 361(2) provides that subsection (1) does not apply in relation to orders for an interim injunction.

59    At trial, having alleged by his application and in the proceedings, contraventions of ss 340 and 346 (Pt 3-1 provisions), Mr Doevendans will have the benefit of the presumption that BHP Coal dismissed him for reasons prohibited by those sections unless BHP proves otherwise. Mr Brick, the decision-maker (but also Mr Hamilton so far as the steps he took are concerned) swears, in effect, that the ss 340 and 346 reasons formed no part of the reasons for dismissing Mr Doevendans. The real reason is said to be the employee’s conduct of holding up and waving the sign at those persons entering and leaving the mine site on 16, 17 and 19 February 2012.

60    As to the real reasons for taking adverse action, the Full Court of this Court has held in Barclay, by majority, that the decision-maker cannot in a determinative or decisive way simply, in effect, swear the issue by asserting a belief (even a genuinely held belief) that the reasons for taking the action were particular reasons. The forensic search for the real reasons is said to involve a characterisation of the reason or reasons of the person who took the adverse action and whilst the subjective intention of the decision-maker will be “centrally relevant”, it cannot be decisive of the question. The search at trial is for the factors that actuated the conduct of the person, not a search for the factors the person thinks actuated him or her. The majority observed that, “[i]t is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question” [emphasis added]: Barclay, Gray and Bromberg JJ at [28].

61    As to the central principle governing an application for an interlocutory order under s 545(2) of the Fair Work Act and s 23 of the Federal Court of Australia Act 1976, arising out of contended contraventions of, relevantly here, ss 340 and 346, the High Court said this in Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 35:

The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked.

62    As to the organising principles which govern the exercise of the discretion in granting or withholding the grant of an interlocutory order which serves that general principle, see CEPU v Blue Star Pacific Pty Ltd (2009) 184 IR 333 at [21]; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65] to [72] as their Honours emphasise and explain the principles established in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. See also the Full Court’s general discussion of the principles governing the grant or otherwise of interlocutory relief, in Samsung Electronics v Apple Inc. (2012) 286 ALR 257 at [44] to [74].

63    As to the obligation, in a practical sense, cast upon a respondent at trial to rebut the presumption arising under s 361(1) by proving the contended counter-factual, the organising principles governing the exercise of the discretion on an interlocutory application are directed to determining whether the applicant has demonstrated a sufficient likelihood of success at trial to justify (having regard to all of the balance of convenience factors) the preservation of the status quo (that is, the pre-adverse action position) pending the trial. The presumption cannot, by operation of s 361(2), be determinative of the interlocutory application but the operation of the presumption in the context of the trial, is relevant to the strength of the probability of success at trial, which is a consideration to be taken into account on the interlocutory application: CEPU v Blue Star Pacific Pty Ltd (at [22] to [25]); Police Federation of Australia v Nixon (2008) 168 FCR 340.

64    Mr Doevendans alleges by his application that he was dismissed because he is a member of an industrial association and an officer of that association for the purposes of s 346(a) of the Fair Work Act. He alleges that he was dismissed because he engaged in industrial activity within the meaning of s 346(b) and s 347(b)(ii), (iii) and (v) of the Fair Work Act. He also alleges that he was dismissed because he had exercised a workplace right for the purposes of s 341(1)(a) and had exercised a workplace right for the purposes of s 340(1)(a)(iii) and s 341(2)(c) of the Fair Work Act.

65    The workplace right he asserts he exercised consisted of taking protected industrial action in 2011 and 2012 and the exercise of a right under a workplace law, consisting of the exercise of rights under the Coal Mining Safety and Health Act 1999 (Qld). Mr Doevendans contends that he engaged in activities associated with his membership of and office within the CFMEU by organising and attending CFMEU protests during periods of protected industrial action, and that the activity of holding up and waving the sign provided to him by the CFMEU for the purposes of the protest, was an activity associated with membership of, and holding office within, the CFMEU for the purposes of s 346(a). Mr Doevendans contends that holding up the sign was an integral part of the protest organised by the CFMEU and thus that conduct fell within the scope of s 346(b) and s 347(b)(ii), (iii) and (v) of the Fair Work Act.

66    Having regard to what is generally described as the reversal of the onus of proof and the “characterisation” exercise that needs to be forensically undertaken at trial in order to isolate the real or actuating reasons for the dismissal of Mr Doevendans, according to the principles adopted by the majority in Barclay, I am satisfied that a prima facie case or serious question to be tried is made out in respect of all of these contentions.

67    I doubt, however, that the prima facie case is a particularly strong one, as holding and waving a sign which describes employees and contractors entering and leaving the mine site as persons of no principles; persons with no fortitude in not refusing to work; and scabs, is unlikely to be an activity which would properly fall within the proper responsibilities, in the circumstances of this case, of members or officers of the CFMEU or activities which properly form part of conduct integral to a protest for the purposes of s 346(b) and s 347(b)(ii), (iii) and (v).

68    Nevertheless, a serious question to be tried in respect of all of the matters at [63] is made out for the reasons mentioned in [64].

69    I have weighed all of the balance of convenience factors and it seems to me that Mr Doevendans’s employment ought to be preserved pending the trial on the footing that it remains a possibility that as a result of a forensic search for the real or actuating reasons for taking action as Barclay requires, a prohibited reason may emerge.

70    In the absence of reinstatement pending trial, Mr Doevendans might be deprived of entitlements which are dependent upon a subsisting employment relationship, such as contributions to superannuation.

71    Nevertheless, assuming the evidence remains as it is, there is a strong position made out on the facts that Mr Doevendans engaged in the conduct said to be the basis for termination of his employment and I accept that within the workplace there is likely to be dislocation should BHP Coal not remain free to direct Mr Doevendans not to attend the workplace. The prospect of employees or contractors engaging with Mr Doevendans in circumstances where some of those employees or contractors may have experienced Mr Doevendans’s conduct of describing them as people with “No principles Scabs No guts”, is a prospect the employer must necessarily manage having regard to the overall working environment and conditions in the workplace in the broadest sense.

72    In the circumstances of this case, I attach little weight to the notion that Mr Doevendans will suffer great stress by not being reinstated in a way which enables him to attend the workplace on a daily basis. It also seems to me that once the financial concern surrounding Mr Doevendans’s loss of wages is relieved pending trial, the stress factor of an inability to attend the workplace on a daily basis, becomes less significant.

73    Steps continue to be taken to determine whether an early trial date might be available so as to hear and determine finally the various issues.

Associate:

Dated:    25 May 2012