FEDERAL COURT OF AUSTRALIA

Blomfield v Bechtel Construction (Australia) Pty Ltd [2012] FCA 1494

THE COURT ORDERS THAT:

1.    The application for interlocutory reinstatement orders is dismissed.

2.    The matter is to be listed for trial on a date to be fixed.

3.    The directions are adjourned to a date to be fixed.

4.    The parties are to confer forthwith as to minutes of orders to bring the matter to trial and to bring in such orders, if agreed, by 4.00pm on 30 November 2012.

5.    Liberty to apply.

6.    Costs be reserved.

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

REASONS FOR JUDGMENT

1    This is an application for interlocutory injunctive relief as a sequel to the dismissal by the respondent, Bechtel Construction Australia Pty Ltd (Bechtel) of each of the applicant workers earlier this week, on 27 November 2012. The relief sought on an interlocutory basis is that, pending the hearing and determination of the substantive application or further earlier order, each of Messrs Blomfield, Munro and Townsley be reinstated to their former employment on the same terms and conditions that applied prior to 27 November 2012.

2    The substantive application, which was filed yesterday, is for declaratory relief against Bechtel in respect of alleged contraventions of s 340 and s 346 of the Fair Work Act 2009 (Cth) (Fair Work Act) in respect of each of the applicants. As to s 340, the allegation is that of termination of employment, because of the exercise of a workplace right. As to s 346, the allegation is that of termination because of membership or because of the holding of a position as an officer in an industrial association. It is fair to say that, for the purposes of today’s interlocutory application, the focus has been more on the cause of action promoted under s 340 of the Fair Work Act than s 346.

3    Associated with the claim for declaratory relief is ancillary relief, which includes a reinstatement order in respect of the applicant workers and the imposition of penalties.

4    The workplace right in question is said to arise under the terms of a workplace law identified as s 84 of the Work Health and Safety Act 2011 (Qld) (Work Health and Safety Act), which provides:

Right of worker to cease unsafe work

A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard.

5    If only for the purposes of this afternoon’s interlocutory hearing it is common ground that s 84 of the Work Health and Safety Act is, having regard to the definition of “workplace law” in s 12 of the Fair Work Act, a workplace law and thus a source of a workplace right. That having been said, issue is nonetheless taken, on behalf of Bechtel, as to whether, even having regard to the terms of s 84, there exists a serious question to be tried, having regard to the evidence to hand.

6    In relation to whether or not to grant interlocutory, injunctive relief the test is that set out by the High Court in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19] and [65]-[72]. Thus, one looks to the existence or otherwise of a serious question to be tried, in the sense of whether a sufficient likelihood of success has been shown to justify a preservation of the status quo, whether damages might be an adequate remedy and balance of convenience. As considerations, one does not look at these in isolation one from the other. There is a necessary interplay between these considerations. For example, even where one might have reservations as to the sufficiency of the likelihood of success an overwhelming balance of convenience may be such as to warrant the granting of interlocutory injunctive relief so as to preserve a status quo.

7    Section 84 of the Work Health and Safety Act has not hitherto been the subject of judicial consideration at least so far as counsel’s researches for the purposes of this afternoon’s proceeding are concerned. That is not to say that the subject is entirely without guidance in precedent. There is, in my respectful opinion, some force in the submission made on behalf of the applicant workers that guidance as to the construction of the provision is to be found in the judgment of Gilmour J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2009) 189 IR 165 at [109] – [113]. For all that, the discussion there by his Honour focussed on the “reasonable concern” element, rather than, because it was not a matter which fell for consideration, the meaning and ramifications of the words “immediate” and “imminent” in the section. Apparent from his Honour’s discussion of “reasonable concern” is its similarity to the discussion found in George v Rockett (1990) 170 CLR 104 as to the meaning of a term such as “reasonable grounds” in a statute.

8    What is important to recall about terms such as “reasonable concern” or “reasonable grounds” is that it is not enough to find an absence of such a concern or ground that the court might not, on that same material, share that concern or regard that ground as present. Rather more than that is necessary. There must be an absence of any reasonable basis for the concern or ground, something which is fanciful, illogical, irrational or lacking a reasonable foundation.

9    Here, the source of the concern in terms of the section is put not so much as a personal experience of a safety breach, as opposed to a culmination of various onsite incidents known to the applicant workers, leading to an apprehension on their part as to an absence of a culture of safety on the site and, hence, a risk both physically and mentally from presence on the site.

10    Having regard to the evidence that is set out notably in the affidavits of Mr Townsley at paragraph 14; Mr Monroe at paragraphs 7, 9, 17 and 20 and Mr Blomfield at paragraph 22, it does not strike me that the case put forward, which has certainly been developed as high as it might be this afternoon by Mr Friend, is an overly compelling one, having regard to what one might regard as the impact of the qualifiers “immediate” and “imminent” in s 84.

11    In terms of the balance of convenience, regard to the affidavits of each of the applicant workers discloses the likelihood that their dismissal will have a singular financial impact, to say nothing of the potential for a relationship impact. I am acutely aware that the vindication, if it proves to be so, of the causes of actions asserted may prove to be hollow if consequences adverse to the workers, flowing from their dismissal, have occurred between now and when the case might be expected to be heard and determined. As to that, given the estimate, on present materials, of a week’s duration for the hearing, the earliest time at which the case could be heard is in March 2013. Even allowing for a determination soon after trial, some four months or so is in prospect of passing before a decision. That is a long time for a worker to be away from a particular chosen employment.

12    As against that, and highlighted on the part of the employer in submissions, is that none of these workers is a long-term employee of Bechtel. Their employment appears to be project specific and that, on the limited perusal available of the affidavit material this afternoon, appears to be a feature of their employment histories.

13    Returning, for a moment, to the question of a serious question to be tried, Bechtel has, even at this interlocutory stage, put on an affidavit from the corporate decision maker in respect of termination, Mr Kerr. The question as to his intention in relation to termination is, obviously enough, not one for adjudication this afternoon. Nonetheless, having regard to what was said in the High Court in relation to the determination of intention in cases such as the present. In Board of Regional Institute Technical and Further Education v Barclay (2012) 86 ALJR 1044, it is significant that the decision maker’s evidence is before me. It is possible, of course, for a decision to be made on the basis of conduct which has two characters, one of which provides a violation or an indication, rather, of action by reason of the assertion of a workplace right and another, which is completely of a different character and concerned with discipline in the workplace. Nonetheless, on the face of it, Mr Kerr’s affidavit does not bespeak a transgression of the statute.

14    This case is one which is quite unlike the factual circumstances which formed the background to my ordering the reinstatement of workers last year in CFMEU v BHP Coal Pty Ltd (2011) 212 IR 306. This is not a case where a stale incident is resurrected for a reason thought to have contemporary resonance as against workers who have continued for years in the workplace, performing their work satisfactorily.

15    There is, in this sort of case, though, an element of being damned if one orders reinstatement and damned if one does not. By that I mean there are obvious consequences for workers who are not reinstated, to which I have already referred. There are also consequences in terms of the assimilation industrially of a reinstatement order, even if only made on an interlocutory basis. The latter is, on the evidence, unsurprisingly, a consideration as well in this case.

16    As might be gathered from the observation just made, I have not found the determination of whether or not to grant interlocutory injunctive relief in this matter at all an easy question to resolve. It must, though, be resolved and, on balance, taking the considerations to which I have referred into account, the conclusion which I have reached is that this is not a case for the granting of interlocutory injunctive relief but rather, one where a trial must be given as early as possible.

Associate:

Dated:    20 December 2012