FEDERAL COURT OF AUSTRALIA

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers’ Union (AMWU) v McCain Foods (Aust) Pty Ltd [2012] FCA 1126

THE COURT ORDERS THAT:

1.    On or before 2 pm on 17 October 2012, the parties file and serve minutes of proposed orders reflecting the reasons for judgment published today.

2.    The applicants’ interlocutory application be further listed for judgement at 4pm on 17 October 2012.

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

REASONS FOR JUDGMENT

1    Section 346 of the Fair Work Act 2009 (Cth) (“the FW Act”) prohibits an employer from taking adverse action against its employee because the employee is an officer or a member of an industrial association, or because the employee has engaged in or proposes to engage in industrial activity. A similar prohibition is contained in s 340(1) which requires that adverse action not be taken against an employee because the employee has exercised or proposes to exercise a “workplace right”.

2    Those provisions identify what have often been called the prohibited reasons for which adverse action is not to be taken. In that context, s 361 of the FW Act provides that adverse action taken against an employee will be presumed to be action taken for a prohibited reason unless the employer responsible for taking the adverse action proves otherwise. These provisions, and in particular s 361, have been recently considered by the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044 (“Barclay”). At [5], French CJ and Crennan J described the task of the court in a proceeding alleging a contravention of s 346 as that of determining, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason.

3    The application before me is an application for an interlocutory injunction which, if made, would have the effect that, until the hearing and determination of this proceeding or further order, an employee who is also a union delegate would be reinstated into employment with his former employer. In determining an application for interlocutory relief, the Court addresses two main inquires. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at trial the applicant will be held entitled to relief. That inquiry is often referred to in terms of whether a serious issue to be tried is established. The second inquiry addresses whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted. That inquiry asks where the balance of conveniences lies. The principles at play are well known and are set out in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.

4    The respondent employer (“McCain”) has conceded that the evidence before me establishes that a serious issue to be tried exists. In my view, that concession was properly made. As a result, the main focus of the interlocutory application turned to the question of whether the balance of convenience favoured the reinstatement, pending trial, of the second applicant (“Mr Lavery”), and the conditions upon which such reinstatement should occur if it were to be ordered. For the reasons I will now explain, I have determined that Mr Lavery should be reinstated, but in a different position and only on the basis of his acceptance of a specific protocol intended to regulate his interaction with the management of McCain and in particular his interaction with Tim Blackamore (“Blackamore”).

The Facts

5    I will commence with a brief outline of the principal facts put before the Court for the purpose of the interlocutory application. The factual findings I make are for the purpose of determining that application and are, in that sense, preliminary.

6    The application for an interlocutory injunction arises out of a complaint made by Blackamore about the behaviour of Lavery. That complaint led to an investigation and ultimately to the dismissal of Lavery on 24 September 2012. Lavery was dismissed for serious misconduct.

7    At that time, Lavery had been employed by McCain as a cleaner working in the Prepared Food Plant of McCain’s facility in Ballarat (“the Ballarat facility”). Lavery started employment with McCain at the Ballarat facility in May of 1989. Throughout that time he has and remains a member of the first applicant “(the AMWU”). Since 1998, Lavery has been one of the AMWU delegates at the Ballarat facility.

8    The Ballarat facility is a large facility where some 700 employees work. It is divided into two main plants. The first is called the ‘Prepared Food Plant’ and is comprised of the ‘Pizza Plant’ and the ‘Dinner Plant’. The second main plant is the ‘French Fries Plant’. The distance between the Prepared Food and French Fries Plants is approximately 300m. Lavery was one of two AMWU delegates on the dayshift in the Prepared Food Plant. There are other delegates working other shifts and other delegates working in the French Fries Plant.

9    Since he became a delegate, Lavery has represented the AMWU and its members extensively. This has included representation of employees in relation to personal grievances and disciplinary matters, as well as involvement in the negotiation of many collective agreements. Lavery describes himself as “forthright and assertive” in his dealings with management while representing AMWU members. He says that he is “persistent and determined” to get the best result for members. As I will explain, over the many years since he first became a delegate, Lavery has interacted with many of McCain’s current and former managers. His interaction with Blackamore has been particularly problematic.

10    Blackamore was first employed by McCain at the Ballarat site in November 2011. At that time he held the role of Production Manager – Dinner Plant. In that role Blackamore interacted with Lavery both in Lavery’s capacity as an employee and also as an AMWU delegate. Blackamore deposes that from approximately December 2011, Lavery’s behaviour towards him deteriorated and that Lavery became more and more aggressive. Lavery acknowledges that his relations with Blackamore have been strained. He blames Blackamore for the breakdown. The AMWU considers that there are tensions between it and McCain including in relation to a recent attempt by McCain to remove ‘pause breaks’ which Blackamore has driven and which Lavery has resisted.

11    Tensions between Lavery and Blackamore appear to have come to a head on 5 July 2012. Two matters of significance appear to have occurred on that day. First, Lavery told McCain’s HR Manager, Brian Neylon (“Neylon”) that another employee Kylie Laudan (“Laudan”) was likely to make a complaint of bullying against Blackamore. Laudan had a number of disputes with management in 2012 in respect of which Lavery represented her and Blackamore represented management including a complaint against Blackamore, supported by a statement made by Lavery. That complaint alleged that Blackamore had refused to discuss an occupational health and safety issue Laudan wanted to raise.

12    The second significant event that occurred on 5 July 2012 was that sometime after Lavery met with Neylon, Blackamore made a bullying complaint against Lavery. Blackamore’s complaint was made to Neylon. It commenced with the accusation that Lavery was preventing Blackamore from carrying out his role as a manager and using bullying as a tool to isolate and intimidate him. The nature of the alleged behaviour complained of was identified in a general way to include:

    “Uses foul language”;

    “Constantly talks over me”;

    “Berates me personally”;

    “Makes accusations about my behaviours”; and

    “Stands over me and leans into me when I am sitting in my desk to intimidate me and try to control me”.

13    That behaviour was said to relate to Lavery’s conduct at meetings. A number of specific meeting dates were listed. The evidence suggests (and it does not seem to be in contest) that all of the meetings in question were meetings over industrial issues which Lavery attended in his capacity as a union delegate.

14    Other allegations were also made including that Lavery had stared at Blackamore in the canteen. Blackamore also accused Lavery of deliberately raising false allegations against him; that Lavery refused to follow reasonable instructions; and that he tried to interfere with and disrupt the management of individuals or investigations that Blackamore was involved in.

15    Aside from the allegation that Lavery stared at Blackamore in the canteen, the evidence before me suggests (and it has not been contended to the contrary) that all other allegations relate to incidents in which Lavery was involved in representing employees in his role as an AMWU delegate.

16    As a result of Blackamore’s complaint, McCain decided to instruct an organisation called ‘LKA Group’ (“LKA”) to conduct an investigation. Lavery provided a detailed written response to Blackamore’s complaint in which he denied the allegations made against him. He also raised a claim that Blackamore’s complaint was vexatious and that Blackamore had bullied and intimidated him. LKA investigated both complaints.

17    LKA provided McCain with a report (“the LKA report”) which dealt with the complaints made by both Blackamore and Lavery. The report identified the complaints made and purported to outline what each of Blackamore and Lavery said in interviews conducted by LKA. The report’s methodology included interviewing witnesses nominated by each of Blackamore and Lavery. An outline of what was said by those persons is also given in the report.

18    The LKA report is relevant primarily because its conclusions were relied upon by McCain as the basis upon which McCain dismissed Lavery. LKA rejected the complaint, or what it called the ‘counterclaim’, made by Lavery. It considered that some, but not all, of Blackamore’s complaints were ‘sustained’.

19    LKA rejected Blackamore’s allegations based on the use of ‘foul language’ by Lavery. It regarded the evidence in relation to allegations that Lavery stared at Blackamore in the canteen as inconclusive. LKA was not satisfied that Lavery had raised false allegations against Blackamore and used others to drive that agenda. It also rejected Blackamore’s allegations that Lavery interfered with and disrupted Blackamore’s management of individuals and investigations that he was involved in, save that LKA was satisfied that in the course of meetings with Blackamore, Lavery interfered with Blackamore’s management of the employees that Lavery represented.

20    LKA was satisfied that in the course of a number of meetings held in late 2011 and throughout 2012 Lavery ‘bullied and harassed’ Blackamore. Read in context, it appears that the meetings in relation to which that conclusion was made were meetings held to resolve a range of ‘disciplinary and industrial issues’ in which Lavery was representing other employees. LKA’s conclusions describe Lavery’s behaviour in those meetings as ‘angry, intimidating and confrontational’. That behaviour, LKA concluded, was:

…manifested through Mr Lavery’s tone of voice, his interruptions, his refusal to listen to and/or to sensibly discuss the issue at hand and in his body language. We consider that this was unreasonable behaviour that a reasonable person, having regard to all the circumstances, would expect to undermine and threaten Tim Blackamore in the performance of his role as a manager. We are also satisfied that this behaviour created a risk to Mr Blackamore’s health and safety.

21    The LKA report acknowledged that many of those interviewed gave different and contradictory accounts of relevant events. That acknowledgement is confirmed by the summaries of interviews contained in the report. Those summaries show that there are mixed reactions to Lavery’s behaviour at meetings from managers and former managers. Some describe his behaviour as aggressive and characterise it as bullying. A number of others, although critical to some extent, did not feel bullied or experience ill-health as a result of their interactions with Lavery. One former and longstanding HR Director is recorded as characterising Lavery’s behaviour as “part of the cut and thrust of industrial relations”.

22    The LKA report also includes summaries of interviews which record criticism of Blackamore’s behaviour in meetings, including that he was aggressive towards Lavery and talked over him. Other persons describe Blackamore as calm and totally professional. One manager whom both Blackamore and Lavery invited LKA to speak to, is reported to have said that he had observed heated discussions between Blackamore and Lavery but had not seen any behaviour from either towards the other that he considered would constitute bullying.

23    The LKA report resolved the conflicts in the various accounts given by concluding that the witnesses who supported Blackamore’s complaint were more credible and provided more detailed evidence than the witnesses who supported Lavery’s position. The basis for that conclusion is not given.

24    A number of further observations are contained in the section of the report which contains its conclusions. LKA identified two ‘mitigating factors’ in relation to the adverse conclusions made against Lavery as follows:

Firstly, McCain has tolerated Paul Lavery’s conduct for a number of years and he has at no stage been held to account for his behaviour. Accordingly, his aggression in the course of meetings with management representatives has become normalised. Secondly, although Mr Lavery behaved unreasonably in the course of meetings, his motivation in most situations was to protect his colleagues’ best interests.

Further, the report noted that industrial relations at the Ballarat site is conducted ‘in a robust fashion’, a matter thought to be not unusual in a manufacturing environment. Whilst the LKA report acknowledged the existence of a fine line between robust industrial relations and unreasonable behaviour, LKA was satisfied that Lavery had ‘crossed that line repeatedly in the course of his interaction with Mr Blackamore and with Mr Neylon’.

25    On 9 August 2012, LKA submitted its report to Dahlson Forsyth (“Forsyth”) McCain’s Manufacturing Manager for Australia and New Zealand. On 3 September 2012, Lavery was stood down from his employment on full pay. He was handed two letters by McCain each dated 3 September 2012. One of the letters set out an extract from the LKA report containing some of the report’s conclusions. The second letter identified what the letter characterised as four findings made by the LKA report. It advised that having reviewed the LKA report, McCain considered that Lavery had engaged in serious misconduct which could lead to disciplinary action. The letter sought Lavery’s response and suggested a meeting be scheduled for that purpose. A full copy of the LKA report was not provided to Lavery at that time, and was only first provided shortly before the hearing of the interlocutory application on 10 October 2012.

26    The foreshadowed meeting was held on 6 September 2012 and a further meeting was held on 24 September 2012 between management of McCain, Lavery and officials of the AMWU. At the meeting on 24 September 2012, Lavery was given a letter signed by Forsyth which notified him of the termination of his employment on the ground of serious misconduct. The letter stated that the decision to dismiss Lavery was based on the LKA report and in particular the finding that Lavery had “bullied and harassed” Blackamore.

27    The evidence suggests that from time to time a concern has been raised by management in the course of a meeting about the particular behaviour of Lavery in that meeting. The evidence does not suggest that prior to Blackamore’s complaint, Lavery has ever been formally challenged about his behaviour or previously warned that his behaviour in meetings may subject him to disciplinary action. Lavery has had one or two warnings in his time whilst working with McCain. The last one was over 10 years ago and related to sitting on a bulldozer when he should not have. On 27 June 2012, Lavery received a performance appraisal which was conducted by Neylon and another manager. That appraisal made no mention at all of any inappropriate behaviour of the kind that McCain relies upon in this proceeding. That may well be because the performance appraisal related to Lavery’s duties as a cleaner and not his activities as a delegate. In that appraisal, Lavery was categorised as a ‘valued employee’.

28    There is also evidence given by Neylon and several other managers who expressed their own personal concern about Lavery’s behaviour in their interactions with him as a delegate. Lavery’s evidence that his behaviour was not inappropriate is supported by evidence from an official of the AMWU that Lavery conducts himself in a professional and courteous manner. At this stage, I am not in a position to resolve the conflict in the evidence about Lavery’s behaviour. I do however proceed on the basis that a serious issue has been raised that Lavery’s behaviour in industrial meetings may be aggressive, confrontational and disrespectful in a way which may lead other participants to experience stress and its ill-effects. I am not however satisfied that Lavery knew or should reasonably have known that his behaviour in carrying out his functions as a delegate had led or would lead to others experiencing the ill-effects of significant stress.

29    In that last respect I note that in the interview which Neylon gave to LKA, the truth of which Neylon has deposed to, the following statement by him was made in relation to Lavery’s behaviour:

We have ignored and condoned this behaviour in the past and we have to accept responsibility for this.

30    The interlocutory application first came on for hearing on 28 September 2012. On that occasion the application was adjourned in order that further affidavit material could be exchanged and also in the expectation that a mediation would occur with the assistance of Fair Work Australia. On that day McCain gave undertakings, including that pending the hearing and determination of the interlocutory application, McCain would employ Lavery on full pay on the basis that his employment would be suspended.

A serious issue to be tried

31    Whilst McCain has conceded the existence of a serious question to be tried, I need nevertheless to consider the strength of the prima facie case as “the balance of convenience may be affected by the Court’s perception or evaluation of the strength of the plaintiff’s case”: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 155 (Mason ACJ); Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472 (Woodward J with whom Sweeney J agreed).

32    Insofar as the applicants’ case is based upon adverse action having been taken against Lavery because of his status (as distinct from his activities) as a delegate, I consider the applicants’ case at this stage to be weak. There is no evidence of anti-union animus sufficient to suggest that Lavery was the subject of adverse action simply because he held the position of a union delegate.

33    Insofar as the applicants’ case is based upon adverse action taken by reason of Lavery’s industrial activities, the case is stronger. The applicants contend that the whole process of taking action against Lavery, including Blackamore’s complaint, the initiation of an investigation, the unfair conduct of the investigation and the process by which the sanction of dismissal was chosen and the dismissal itself, were all actuated (at least in part) by Lavery’s activities as a delegate. It is sufficient for current purposes to focus upon McCain’s decision to choose dismissal as the appropriate sanction and the dismissal itself.

34    The prohibition against taking adverse action against a person because of the person’s engagement in industrial activities is given definition by s 347 of the FW Act. The representation of the interests of a union and its members by a union delegate in meetings with an employer is clearly encompassed in the definition given to industrial activities by s  347(a) and (b).

35    The extent to which an employer may be required to establish that its reason for taking adverse action against a delegate was disassociated from the employee’s status as a delegate was the subject of the High Court’s decision in General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235; 12 ALR 605. As Gummow and Hayne JJ observed in Barclay at [104] “the reasoning of Mason J in Bowling is to be applied to s 346” (see further French CJ and Crennan J at [59]). French CJ and Crennan J observed at [62] that it is not necessary for an employer to establish that its reason for taking adverse action is “entirely disassociated” from the employee’s industrial activities, but it is necessary for an employer to prove that the activity was not an operative factor in taking the adverse action (see further Gummow and Hayne JJ at [104]). In other words, if there is an association between the reason for the adverse action and the industrial activity, it will be necessary for an employer to prove that such an association was not an operative factor in the taking of the adverse action.

36    Ordinarily, the manner in which an activity is carried out bears a close relationship to the activity itself. Indeed, the manner of carrying out an activity may not be distinguishable from the activity itself. Much depends upon the nature of the activity and the extent to which the manner in which it is carried out is properly to be regarded as falling within the scope of the activity itself.

37    Forsyth has deposed that his decision to use dismissal as the sanction and to dismiss Lavery from his employment was based on the LKA report. Both the LKA report upon which Forsyth relied and the evidence of Forsyth himself, seek to draw a distinction between the activities Lavery carried out as a delegate and the manner in which those activities were carried out. As I understand his evidence, Forsyth is essentially saying he was actuated to dismiss Lavery because of his behaviour, that is, the manner in which he carried out his representational activities and not the activities themselves.

38    It must be the case that some behaviour is so foreign to the scope of an industrial activity that it forms no part of it and therefore falls outside the protection intended by s 346. Violence, intimidation or other recognised unlawful activity clearly fall beyond the scope of protected industrial activity. The extent to which lawful but inappropriate behaviour falls outside the boundaries of an industrial activity is a more difficult question. By what or whose standard is behaviour to be regarded as inappropriate or so inappropriate as to be divorced from the industrial activity itself? Whilst many may consider it highly undesirable, the fact is that civil, respectful and dignified behaviour is not always maintained in any adversarial context; let alone the highly charged environment in which industrial relations is so often conducted in Australia.

39    The discharge by an employer of the onus required by s 361 of the FW Act may well be difficult where a distinction is sought to be drawn, as in this case, between industrial activity and what is said to be the inappropriate behaviour which accompanied it. To the extent that the behaviour formed a legitimate part of the activity, there is a basis for contending that the adverse action was actuated (at least in part) by the industrial activity.

40    On the facts of this case, it is strongly arguable that an association existed between the industrial activity in which Lavery engaged and the adverse action taken to dismiss him. The question will then be whether such an association was an operative factor in McCain’s decision to take adverse action.

41    Further, the existence of a prima facie case is also strengthened by the evidence that the sanction of dismissal was applied to Lavery without McCain giving any prior warning that the impugned behaviour may lead to a disciplinary sanction, let alone dismissal.

42    Where conduct has been condoned by an employer, as the evidence of Neylon strongly suggests that it was in this case, it would ordinarily be expected that an employer would give an employee due warning of its intent to no longer tolerate such behaviour prior to the taking of disciplinary action, particularly the drastic step of dismissal. The failure to do so puts the employer at risk of a claim of unfair dismissal. The perceived risk to health and safety of bullying conduct upon which McCain relies may ultimately provide a complete explanation as to why McCain moved directly to dismissal. However, on the current state of the evidence that reason is open to doubt, including for the reasons set out at [53] below.

43    It may be accepted that conduct which constitutes bullying presents health and safety concerns. The prior practice of McCain has not been to treat bullying conduct of itself, as grounds for immediate dismissal on the basis of serious misconduct. McCain’s usual practice has been to discipline an employee found to have bullied another through informal counselling or by a formal warning. Concerns about health and safety were presumably addressed by McCain in that way.

44    No explanation has been given as to why Lavery was dealt with differently in this case and in particular, why health and safety concerns could not have been addressed by measures other than dismissal. Especially in the context of the past condonation of the impugned behaviour, it might be thought that an explanation was called for. In the absence of such an explanation, the inference is open that it was Lavery’s industrial activities which actuated the choice of sanction (immediate dismissal without warning) that McCain applied.

45    In arriving at my view that the prima facie case which has been established is not weak, I have taken into account the evidence of Forsyth and other deponents relied upon by McCain who have deposed as to their motivation for the action taken against Lavery. As a number of authorities have explained, the reverse onus of proof in relation to the prohibited reason is still to be taken into account in determining the strength of the prima facie case when the grant of an interlocutory injunction is being considered: Police Federation of Australia v Nixon (2008) 168 FCR 340 at [69] (Ryan J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563 at [63] (Greenwood J); Construction, Forestry, Mining and Energy Union v Downer EDI Engineering Power Pty Ltd [2012] FCA 661 at [12] (Logan J).

balance of convenience

46    McCain has indicated a preparedness to maintain the employment of Lavery pending the hearing and determination of the trial. That preparedness is conditional on Lavery being suspended from carrying out his work. Accordingly, the issue for determination is whether the balance of convenience favours the resumption by Lavery of his duties at work.

47    In favour of that resumption are two matters upon which the applicants relied. The first is that Lavery should have access to the inherent non-pecuniary values and benefits of useful employment. As Callinan and Heydon JJ said in Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at [80]:

It may be that in modern times, a desire for what has been called "job satisfaction", and a need for employees of various kinds, to keep and to be seen to have kept their hands in by actual work have a role to play in determining whether work in fact should be provided.

48    The loss of access to non-pecuniary benefits is a prejudice not easily compensable by an award of damages. That loss has been recognised as an appropriate consideration to weigh in the discretionary exercise in which I am here involved: Quinn v Overland (2010) 199 IR 40 at [101]-[103] (Bromberg J); Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union v Eaton Electrical Systems Pty Ltd (2005) 139 IR 260 at [13] (Moore J); and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2011) 212 IR 306 at [29] (Logan J).

49    The concerns raised by McCain in relation to Lavery’s return to work are not about the performance by him of his work. As I have said, Lavery was recently acknowledged to be a valuable employee. That circumstance diminishes one of the usual basis for a court’s reluctance to order reinstatement and in any event that traditional reluctance has eased in recent years: Quinn at [97]-[104] (Bromberg J); Communications, Electrical, Electronic, Energy, Information, Postal and Allied Services Union of Australia v Dee Vee Pty Ltd [2012] FCA 988 at [27]-[28] (Tracey J): Transfield Construction Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 at [28] (Merkel J). Further, the relief contemplated by s 545(2) specifically includes an order for reinstatement. The discretionary power to grant final relief is ordinarily exercised in favour of reinstatement as the primary remedy: Lewis Construction v Martin (1986) 70 ALR 135 at 142 (Gray J with whom Woodward and Jenkinson JJ agreed). As Wilcox, von Doussa and Finkelstein JJ said in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 77 FCR 478 at 489:

When the legislation contemplates relief of that type [reinstatement] then there is no reason why interlocutory relief which may have the same practical effect should not be available to an employee whose rights have been arguably unlawfully infringed.

50    Second, the applicants rely upon the prejudice that will be caused by Lavery’s absence from his role as an AMWU delegate. The interests of the AMWU and its members at McCain in being represented by an effective delegate is a matter which may properly be weighed in the balance. The AMWU has other delegates at the Ballarat site including a delegate who worked in tandem with Lavery on the dayshift in the Prepared Food Plant. However, Lavery is said to be the most experienced and effective delegate on dayshift in the Prepared Food Plant and the AMWU’s ability to represent its members may be significantly diminished in his absence. The capacity to find a replacement for Lavery, including a delegate willing to take up the industrial issues that Lavery was pursuing, may well be diminished in circumstances where Lavery has just been dismissed including for the way in which he behaved whilst a delegate.

51    In its opposition to Lavery’s return to work, McCain principally relies upon its concern for the well being of Blackamore. It is concerned about the potential ill-effect upon Blackamore’s health resulting from further interactions between Lavery and Blackamore. That is a matter which deserves very serious consideration.

52    I am not in a good position to properly assess the risk to Blackamore’s ill health for a number of reasons, including because the nature of Lavery’s former behaviour in meetings is in serious contest.

53    There are a number of observations that may be made which tend against according significant weight to McCain’s expressed concern for Blackamore’s health:

    The evidence does not suggest that Lavery’s behaviour is new. To the contrary, the evidence suggests that the way in which Lavery conducts himself in meetings has been a constant for many years. Despite that, there is no evidence of anyone raising a heath and safety concern (or at least a concern that was acted upon by McCain) prior to the complaint made by Blackamore;

    Blackamore himself did not raise any complaint for some three months after he says he first experienced ill health as a result of his contact with Lavery;

    Blackamore’s complaint was made on the same day that the making of a bullying complaint against him was foreshadowed;

    The ill-effects upon Blackamore are described by Blackamore as stress related symptoms such as chest pains, shortness of breath and loss of sleep. His evidence is not supported by any medical evidence. Blackamore deposes that he saw a doctor on 4 September 2012 but gives no evidence of the diagnosis made. There is no indication that any medication was prescribed and no indication that the doctor regarded his continued exposure to Lavery as detrimental to his health. Blackamore told LKA that his stress is based on a combination of work related factors;

    Despite the complaint raised by Blackamore, McCain did not take any steps to address any concern for Blackamore’s health between 5 July 2012, the date of Blackamore’s complaint against Lavery, and 3 September 2012 when Lavery was stood down – a period just short of two months; and

    Despite McCain receiving the LKA report on or about 9 August 2012, no action was taken to address McCain’s asserted concern for Blackamore (or any other employee) for nearly a month, during which time Lavery continued to work.

54    The following factors can be expected to ameliorate the concern for Blackamore’s health (and that of any other employee) should Lavery resume his duties:

    Assuming that Lavery’s prior behaviour was inappropriate, it occurred in circumstances where Lavery had not been warned that its continuance would put his job at risk. He is now well aware of the risk;

    Lavery has deposed that he was not aware that his behaviour had resulted in adverse health consequences for any employee and that he certainly did not intend any such effect. Lavery is now aware of the health concerns raised and their alleged relationship to his behaviour;

    In the two month period between being informed of Blackamore’s complaint and being stood down, Lavery deliberately avoided contact with Blackamore and was largely successful in doing so by raising industrial issues through other managers. There were no complaints raised as to Lavery’s behaviour during that period; and

    Blackamore was promoted in mid-May of 2012 to the role of Prepared Foods Plant Production Manager. Thereafter, the need for Blackamore to come into contact with Lavery in relation to his work as a cleaner was substantially reduced. Lavery cannot recall any such contact between the date of Blackamore’s complaint and when Lavery was stood down.

    Finally, and in my view significantly, Lavery is prepared to underake to submit to and abide by a workplace protocol which would regulate the way in which industrial meetings in which he is involved will be conducted.

55    Whilst McCain resists the prospect of Lavery resuming his duties, its alternative position is that orders with that effect should only be made if Lavery agrees to abide by a workplace protocol. With that possibility in mind, both the applicants and McCain have put forward a proposed protocol. Whilst there is some difference between the two proposals, they are substantially identical in substance and largely identical in form. The capacity of the parties to arrive at very substantial agreement as to the terms of a protocol is no doubt the product of some goodwill between them and suggests a capacity for that goodwill to continue and for a protocol to operate successfully pending the trial.

56    As Wilcox, von Doussa and Finkelstein JJ said in Patrick Stevedores Operations No 2 at 489:

…we are firmly of the view that if the parties behave in a fashion which accords with common sense and displays some element of good will then there should be no difficulty with the practical operations of the Labour Supply Agreements. If we are wrong in this belief then the Court is well able to remedy any problem at short notice.

See further Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [80].

57    I note that the proposed protocols have been put before the Court without any admission of liability and without prejudice to any other rights the parties have.

58    I have taken into account the submissions made by the parties as to the terms of any protocol. The terms of an appropriate protocol are attached to these reasons for judgment.

59     Having considered the factors relevant to the question of the balance of convenience in the context of the strength of the prima facie case, I have come to the view that the balance of convenience favours Lavery being permitted to resume work pending the trial. In coming to that view I have also taken into account that the applicants are prepared to give the usual undertaking as to damages. A further undertaking, in an appropriate form, will need to be given by Lavery to submit and abide by the protocol attached to these reasons.

60    Although the protocol does not mandate it, it may be expected that insofar as it is possible, industrial meetings between management and Lavery will not ordinarily include Blackamore. If they do, McCain will no doubt ensure that Blackamore’s health and safety concerns are supported by the attendance of other managers. McCain nevertheless remains concerned that if Lavery resumes his previous position, he will be placed in close proximity to where Blackamore works and that will necessarily bring him into contact with Blackamore.

61    If a convenient opportunity to avoid the frequency of that kind of contact is available, it ought to be taken up unless outweighed by the potential prejudice to the position of the applicants. As part of the alternative position McCain has proffered, it has suggested that Lavery resume work in the French Fries Plant pending the trial. That proposal would avoid Lavery and Blackamore working in the same plant. There are two positions that can be made available to Lavery, one of which is a similar role to Lavery’s former role as a cleaner in the Prepared Food Plant. No financial disadvantage would be experienced by Lavery if he were to be reinstated into either position. I presume that McCain’s proposal is based upon Lavery taking up whichever of the two positions he prefers. McCain made this proposal on the basis that Lavery could continue to represent the AMWU as its delegate including in relation to duties performed for employees in the Prepared Food Plant.

62    I accept that placing Lavery in a different plant some 300m away from the members he has been elected to service is of some potential prejudice to the AMWU and those members. Much of the effectiveness of a shop-floor delegate is dependent upon being on the shop-floor. That is no doubt why unions supplement the representation provided by union organisers with the representation provided by delegates. However, there is in place a second delegate working on the dayshift on which Lavery worked. Relatively simple steps could be taken to facilitate the continued representation by Lavery of those members on the dayshift in the Prepared Food Plant, as well as the casual employees across the site who were also principally looked after by Lavery. McCain has indicated its preparedness to facilitate Lavery’s capacity to continue that representation. That preparedness will need to accommodate the likely need for employees to urgently and confidentially communicate with Lavery. McCain’s preparedness should be formalised so that the position is clear and well understood. If that were done, I would not regard as significant the short-term prejudice that may be occasioned upon the AMWU and its members by reason of Lavery working in the French Fries Plant, and I would order that, pending the trial, Lavery be reinstated to work in that plant in whichever of the two available positions he prefers.

63    There is some force in the applicants’ point that Blackamore ought not be at work if his health is so fragile that the occasional contact with Lavery may cause him difficulty. However, it seems to me that the orders the Court makes should strive to facilitate the continued useful employment of both Lavery and Blackamore and that some compromise on the applicants’ part to assist in best meeting that objective can and should be required.

64    I will direct the parties to bring in minutes of proposed orders which reflect these reasons and will list the matter so that any undertakings to be given, can be given in open court. At that time I will pronounce the orders the Court will make. Those orders will include liberty to apply on short notice.

Associate:

Dated:    16 October 2012

ANNEXURE

Workplace behaviour protocol

1    Discussions with management

(a)    If Mr Lavery wishes to meet with management in his capacity as a union delegate or if management wish to meet with Mr Lavery in his capacity as a union delegate, the party seeking the meeting must give at least 24 hours written notice to the other. If Mr Lavery is seeking the meeting, he will give notice to Brian Neylon (HR Manager). If management is seeking the meeting, the notice will be given to Mr Lavery. The 24 hour notice requirement will not operate where management and Mr Lavery agree otherwise or where there is a potential for imminent (i.e with the 24 hour period) action to be taken against an employee who has requested that he or she be represented by Mr Lavery or a meeting is required to deal with an urgent industrial issue. The notice to be provided by or to Mr Lavery will state:

    (1)    the wish to organise a meeting; and

    (2)    the specific issue(s) to be discussed.

(b)    As soon as practicable after the giving of the notice, Mr Neylon, or his nominee, will discuss with Mr Lavery:

    (1)    the time of the meeting, which shall be as soon as practicable;

    (2)    who is to attend the meeting;

    (3)    the agenda for the meeting;

    (4)    the expected duration of the meeting; and

    (5)    the location of the meeting.

2    Protocol in meetings

(a)    Meetings will be conducted in the following way:

(1)    All persons attending the meeting have a right to be treated with respect.

(2)    Only one person at a time is to speak and each person will be given a reasonable opportunity to express their position at the meeting and discuss their concerns. Generally, the initiator of the meeting will be given an opportunity to put its case, followed by a response, and then the initiator’s reply.

(3)     When a person is speaking, other participants will listen.

(4)    Shouting will not occur.

(5)    Insulting, abusive or foul language will not occur.

(6)    Participants in the meeting will respect each other’s personal space.

(7)    Unless otherwise agreed, the meeting will focus on the specific issues raised in the notice referred to in paragraph 1.

(b)    If Mr Lavery so requests, McCain will allow a second delegate or union official to be present at the meeting.

(c)     It will be open for either party to seek a break during the meeting to consider the position put by the other party.

3    Breach of the protocol

(a)    In the event that a participant in a meeting feels that another participant is breaching this protocol, that person has the right to request the allegedly offending participant to stop that behaviour (first request).

(b)    If the offending participant does not stop the behaviour after the first request, the participant should request once more that the allegedly offending participant stop that behaviour (second request).

(c)    If the allegedly offending participant does not stop the behaviour after the second request, the participant has the right to request an immediate end to the meeting.

(d)    After the meeting, the participant should tell Mr Neylon about the behaviour they encountered by the alleged perpetrator, so that enquires can be made to ascertain the reasons behind the meeting’s termination.

(e)    Nr Neylon (or his nominee) will keep a record of the behaviour and terminated meeting on file. A copy will be provided to Mr Lavery.

(f)    Mr Lavery (or his nominee) may keep his notes of the meeting.

4    General

(a)    This protocol will not apply to collective bargaining.

(b)    This protocol is without prejudice to any other rights which Mr Lavery or McCain has.

(c)    Either McCain, Mr Lavery or the AMWU may request a member of Fair Work Australia to conciliate (but not arbitrate) any dispute as to the meaning or application of this protocol, including a dispute as to any alleged breach. McCain, Mr Lavery and the AMWU will participate in any conciliation convened by Fair Work Australia for that purpose.