FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Downer EDI Engineering Power Pty Limited [2012] FCA 661

THE COURT ORDERS THAT:

1.    The application for continuance of the interlocutory injunctive relief granted on 4 May 2012 is dismissed.

2.    The applicant is to file forthwith its originating application.

3.    The proceedings are adjourned to 9.30am on 16 May 2012 for directions.

4.    No order as to costs.

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

REASONS FOR JUDGMENT

1    On 4 May 2012, a Mr Eddie Allen, was dismissed from his employment with the respondent, Downer EDI Engineering Power Proprietary Limited (Downer EDI). The occasion for the dismissal was the reaching of a conclusion by Downer EDI, by its project manager, Mr Paul Hopkins, that on 2 May 2012 Mr Allen had engaged in conduct at a residential camp at Nebo Junction in central Queensland relative to another employee, a Mr Robert Taylor, that warranted his summary dismissal.

2    Later that day and in circumstances of some urgency, Mr Allen’s union, the applicant, Construction Forestry Mining and Energy Union, sought, on an ex parte basis, interim injunctive relief relative to that dismissal. Such relief was granted, returnable on the first sitting day following the Labour Day weekend, which was yesterday. At that time, the union, on this occasion on notice to Downer EDI, made application for a continuation of the interim injunction, restraining the termination pending the hearing and determination of a substantive application in this court.

3    The substantive application, whilst it has yet to be filed, is in terms of that foreshadowed in the interlocutory application, one under s 346 of the Fair Work Act 2009 (Cth) (Fair Work Act). That section materially prohibits of the taking by a person of adverse action against another person because that other person is a member of an industrial association, or engages or at any time engaged, or proposed to engage in industrial activity within the meaning of s 347 of the Fair Work Act. Also materially, s 347 provides that a person “engages in industrial activity” if he or she becomes or remains a member of an industrial association, or does organise or promote a lawful activity for or on behalf of an industrial association, or encourage or participate in a lawful activity organised or promoted by an industrial association, or represents or advances the views, claims or interests of an industrial association. Mr Allen is a member of the union.

4    Something needs to be said, insofar as present materials reveal, about the nature of the activity conducted by Downer EDI, its relation with the camp mentioned and the incident concerned. Downer EDI is a contractor to Bechtel Australia Proprietary Limited in respect of certain construction aspects of a coal processing plant at South Water Creek. More particularly, Downer EDI is responsible for the structural, mechanical and electrical construction aspects of the processing plant. It has some 120 persons employed at South Water Creek in respect of that project. Those persons are subject to an industrial agreement known as the Downer Australia South Water Creek Project Greenfields Agreement 2011-2015.

5    Messrs Allen and Taylor are two such employees. Mr Allen’s employment is project specific. By that I mean that the length of the employment is measured by the length of the project. At this stage, it is anticipated that the construction aspect of the project being undertaken by Downer EDI will conclude in August. Workers engaged by Downer EDI for that project are housed at a residential camp. That camp is located at Nebo Junction some 40 km away from the construction site at South Water Creek.

6    On 2 May 2012 an incident occurred at the residential camp between Mr Allen and Mr Taylor. It seems common ground that, to an extent and the particular extent is not for determination today, Mr Allen was at the time affected by alcohol. In essence, according to the version of events which came to be accepted by Mr Hopkins, Mr Allen remonstrated in a highly abusive way with Mr Taylor about Mr Taylor’s not being a union member. Mr Allen, as I have mentioned, is a union member and, on his evidence, he is an active union member who takes a close interest in industrial affairs involving him and his fellow workers.

7    The personnel staff at Downer EDI conducted an investigation into the incident and made a report to Mr Hopkins who reached the conclusion mentioned and made the decision in respect of termination.

8    Four factors in particular were highlighted on behalf of the union in support of the interlocutory injunction’s continuance as relevant to a conclusion that a prima facie case existed. They were these. Mr Allen is an active unionist at the site; the speed with which the Downer EDI acted in relation to the incident; the reluctance of Mr Evans, one of the personnel staff, to allow Mr Allen to have what was said to be a reasonable time to prepare his case and be represented; and; the ready manner in which allegations against Mr Allen were accepted “on the balance of probabilities”.

9    From these, it was said to follow that there was a strong inference that Downer EDI had acted opportunistically to take advantage of Mr Taylor’s allegation in order to rid itself of the presence of an active unionist, Mr Allen, at the site. Further, it was submitted that the behaviour was of itself of an industrial nature and would not, in any event, lead to termination in the context of a construction site or, perhaps, more accurately, a construction site’s residential camp, except for the fact of its industrial character.

10    The principles in relation to the question of whether interlocutory injunctive relief should be granted or continued are well settled although, perhaps, that was not always so. In any event, in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, the High Court came to the view that, to the extent that there was any inconsistency between earlier statements in relation to the criteria for the granting of interlocutory injunctive relief in that court’s earlier decision in Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 at 622-633 and observations made in the House of Lords in American Cyanamid Co v Ethicon Ltd (1975) AC 396 at 407-408, the High Court’s statement of principle should be preferred. That means that one of the criteria one must take into account in deciding whether or not interlocutory injunctive relief is whether there is a “prima facie case” in the sense that an applicant has shown a sufficient likelihood of success to justify the preservation of a status quo pending a trial, not that it is more probable than not that an applicant will succeed at trial. The other criterion which is taken into account is the balance of convenience.

11    In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 971 at [19], I observed that those two considerations interrelated in terms of making a decision as to whether to grant interlocutory injunctive relief. In other words, it may be, for example, that even though one had reservations about the sufficiency of a prima facie case, if the balance of convenience overwhelmingly favoured the granting of interlocutory injunctive relief, one might, nonetheless, grant such relief. There are permutations and combinations in regard which are all necessarily case specific.

12    Another factor which each party regarded as relevant in the particular context of interlocutory injunctive relief sought against the background of an application under s 347 of the Fair Work Act was the extent to which a conclusion in relation to a prima facie case should be influenced by the application at trial, although not at an interlocutory stage, of s 361(2) of the Fair Work Act, the so-called “reverse onus” provision. In that regard, in Police Federation v Nixon (2008) 168 FCR 340 at [69] (Police Federation v Nixon), Ryan J observed in respect of a predecessor to s 361 in earlier legislation:

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 proscribed reason or for reasons that included a proscribed 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.

I respectfully agree with his Honour’s observation. An assessment of a prima facie case must necessarily be made having regard to the elements of the cause of action in the substantive proceeding and the manner in which such a course of action must be proved. It would seem to me, as evidently it did to Ryan J in Police Federation v Nixon, that it necessarily follows from this, in the context of an interim or interlocutory injunction application made against the background of a substantive application under s 346 of the Fair Work Act, that one must take into account in deciding whether there is a prima facie case and its sufficiency that, at the trial, s 361 will have application.

13    It is also pertinent in the case of a dismissal for which it is said that at least a reason, if not the reason, was one which contravened the prohibition against adverse action to take into account such evidence, if any, as is given by or on behalf of the employer in relation to the termination decision. More particularly, it is always pertinent to take into account whether or not the actual decision maker has given evidence. It can be an influential factor in cases where the reverse onus of proof is applicable that the actual decision maker prefers the well of the court rather than the witness box.

14    In this case, even at the interlocutory injunctive stage, each of the persons in the chain from investigation to final decision has provided affidavit evidence. Also, part of that evidence is the internal policy of Downer EDI in relation to the investigation of incidents such as that alleged to have occurred on 2 May 2012.

15    It is axiomatic that it is no part of my role today to reach any final conclusion whatsoever on the substantive merits of the application. Nonetheless, the incident concerned occurred and it is, if not common ground, at least not the subject of evidentiary controversy, that it occurred in the confines of a residential camp which has albeit, seemingly better appointed, but nonetheless barracks-like qualities. By that I mean workers are housed in a location which is relatively remote and in close confines one with the other.

16    The incident concerned in the end required the making of a value judgment as to inherent likelihoods of one version, Mr Taylor’s, as against another, Mr Allen’s. Mr Allen had initially indicated that two other persons might be able to provide insight into the incident alleged to have occurred by Mr Taylor. That proved not to be so upon Downer EDI’s investigation. Further, the nature and extent of an investigation must inherently relate to the factual complexity of the incident concerned. This was not a complex incident factually.

17    Mr Hopkins has deposed that he was not aware before making the decision of Mr Allen. There is no necessary inconsistency, in my opinion, between Mr Allen’s being, as he is more than entitled to be, actively interested in the affairs of his union and Mr Hopkins not being aware of him at all, let alone of his particular industrial interests. What follows from that is that, at least as a matter of impression on the evidence read on the application, the inferences which the Court will be invited to draw so as to reach a conclusion that at least a reason for Mr Allen’s dismissal was a contravention of s 346 are by no means compelling, or even more than the barely possible or barely plausible. It is the latter, of course, not the former, for it is no my part of my role to reach a view that success is more probable than not, that is pertinent.

18    In the ordinary course of events, where employment was ongoing, there may be much to be said for a continuance of a worker in employment pending the hearing and determination of a proceeding. Much, though, depends on the particular employment circumstances. Here, it is not necessarily the case that reinstatement would follow in the event of success at trial. As I have mentioned, the employment is not ongoing, but rather, project specific. Further, and it is just a feature of the judicial resources which the Australian government has committed to this Court, it is unlikely that a trial could be conducted prior to August. In those circumstances, the prospect of reinstatement seems to me rather less than the prospect that monetary compensation would be the order made in the event of the union’s case succeeding.

19    Also relevant to take into account, as is apparent from Mr Hopkins’ affidavit, and for that matter, experience of human affairs, is the difficulties which would necessarily attend the continuance in the close confines of recreational camp of Mr Allen as well as Mr Taylor. As against that, of course, there is the very important consideration that a worker derives not only income from his or her employment but also a sense of dignity, self-worth and social interrelationships.

20    These are all factors which are necessarily taken into account in deciding in a case such as this whether to grant interlocutory injunctive relief. It will be apparent form the foregoing that the factors are not all one way. Each side potently and helpfully highlighted factors for and against the granting of interlocutory injunctive relief. In the end, one must make a value judgment and something of a balancing judgment at that. The view I have reached, taking into account the question of whether there is a prima facie case, which I have mentioned I consider to be just possible or barely plausible, and the balance of convenience which I consider to be one which tells against the granting of interlocutory relief, is that the application for the continuance of the orders made on 4 May 2012 should be refused.

21    The order that I make, therefore, is that the application for continuance of the interlocutory injunctive relief granted on 4 May 2012 is dismissed.

22    I do not propose to make any order as to costs. I am of the quite firm view that this was not a frivolous or vexatious application. It is just that there was a value judgment that had to be made. I do not consider it in any way an application that was not reasonably brought.

Associate:

Dated:    22 June 2012