FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2018] FCA 1590

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 545 of the Fair Work Act 2009 (Cth) and section 23 of the Federal Court of Australia Act 1976 (Cth), until the hearing and determination of this matter or further order, the respondent, by itself, its servants or agents, be restrained from excluding or otherwise preventing Kim Star from attending the Goonyella Riverside Mine to perform work there on behalf of WorkPac Pty Ltd pursuant to the labour hire contract between the respondent and WorkPac Pty Ltd.

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

REASONS FOR JUDGMENT

COLLIER J:

1    In this matter the applicant, the Construction, Forestry, Maritime, Mining and Energy Union (the union) seeks interlocutory relief against the respondent, BM Alliance Coal Operations Pty Ltd (BMA), pursuant to s 545 of the Fair Work Act 2009 (Cth) (FW Act) and s 23 of the Federal Court of Australia Act 1976 (Cth). The relief sought is in terms that, until the hearing and determination of this matter or further order, BMA, by itself, its servants or agents, be restrained from excluding or otherwise preventing Ms Kim Star from attending the Goonyella Riverside Mine (the mine) to perform work there on behalf of WorkPac Pty Ltd (WorkPac) pursuant to the labour hire contract between BMA and WorkPac. The union also seeks such further or other interlocutory orders as the Court considers appropriate.

2    In its substantive application filed on 8 October 2018, the union seeks declaratory and other relief in respect of alleged contravention of s 340 of the FW Act by BMA because of claimed exercise by Ms Star of workplace rights on or about 9 November 2017. The union seeks related injunctive relief in respect of the conduct of BMA preventing Ms Star attending the mine to perform work on behalf of WorkPac, as well as compensation from BMA and the imposition of pecuniary penalties.

Background

3    Background facts as claimed by the parties for the purposes of these interlocutory proceedings are set out in affidavits filed by both sides. The union relies on three affidavits, namely:

(1)    an affidavit sworn 5 October 2018 by Ms Star;

(2)    an affidavit affirmed 8 October 2018 by Mr Joseph Kennedy of Hall Payne Lawyers, which acts for the union in this matter; and

(3)    an affidavit affirmed 16 October 2018 by Mr Brett Hazeldine, a worker employed by BHP Coal Pty Ltd (BHP) as an Open Cut Examiner since 2001.

4    BMA relies on the affidavit affirmed 19 October 2018 by Mr Brent Gee, the Manager Production Coal at the mine.

5    In her affidavit sworn 5 October 2018, Ms Star deposed, in summary, as follows:

    Ms Star was employed by WorkPac as a machinery operator at the mine from October 2013 until 13 November 2017.

    The basis of Ms Star’s employment was casual.

    The mine was owned and operated by BMA.

    Ms Star was engaged in accordance with a regular roster, and she worked a rotating roster across fourteen days out of a 28 day cycle.

    The rotating roster includes night shifts as well as day shifts. On night shifts workers take two 35 minute crib breaks.

    Ms Star was usually responsible for driving a dump truck.

    During the time Ms Star worked at the mine, no issues were raised in respect of her performance by either BMA or WorkPac.

    Ms Star’s partner is employed by BHP at the mine as a machinery operator in the same crew Ms Star worked on. Her personal circumstances are such that it is very convenient for her to work at the mine.

    There was a safety incident during her work at the mine on the night shift of 9 November 2017. In short – Ms Star alleges that she was required to drive a truck on a lamp without lights and then to dump loads of rocks, and because this was hazardous she requested that lights be provided. There was interaction between BHP supervisors and Ms Star in respect of the lights issue, and she assumed it had been resolved. Ms Star was required then to undertake a random mid-shift drug test which had previously been arranged, finished her crib break, and then completed her shift without incident.

    On 10 November 2017, WorkPac endeavoured to contact Ms Star, however, Ms Star was out of mobile range at the time. On 13 November 2017, Ms Star spoke with Nicole of WorkPac who told Ms Star that her services were no longer required by BMA and that Ms Star was being “demobilised”. Nicole professed lack of knowledge of why this was the case.

    Ms Star was subsequently contacted by Thiess to work at another BMA coal mine. She commenced working in her new role on 27 November 2017. In her new role, however, she rarely sees her partner because of different shifts.

    Ms Star filed an unfair dismissal claim against BMA under the FW Act, seeking orders for reinstatement to her job with WorkPac.

    On 17 September 2018 the Fair Work Commissioner issued a reinstatement order. As a result Ms Star resigned her employment with Thiess, finishing on 25 September 2018. WorkPac did not reinstate Ms Star, advising her that BMA would not allow her back into the mine.

    Ms Star has taken up a role with Mackellar Mining, and, although the earning are approximately the same, she will not be able to live in the same house as her partner while she is rostered to work because of the location of her new employment.

6    In his affidavit affirmed 8 October 2018, Mr Kennedy deposed, materially:

    In the Fair Work Commission proceedings, Hall Payne Lawyers acted for Ms Star in unfair dismissal proceedings.

    Ms Star instructed Hall Payne Lawyers to, inter alia, file an application for an order for production of documents by BHP Coal Pty Ltd regarding the decision to remove and/or exclude Ms Star from the mine on 9 or 10 November 2017, and documents regarding her conduct at work on those days. The application was opposed by BHP on the basis that, inter alia, WorkPac never sought the reasons behind the direction to remove Ms Star.

    Notwithstanding the opposition of BHP, the Fair Work Commission issued an order for production of the documents sought. However, no documents were produced which revealed any reason for the exclusion of Ms Star from the mine site.

    On 28 August 2018, DP Asbury of the Fair Work Commission handed down her decision which found that the dismissal of Ms Star was unfair.

    BMA took the position that reinstatement of Ms Star as a labour hire worker at the mine would not be considered.

    The Fair Work Commission issued a decision on 17 September 2018, finding that reinstatement of Ms Star to the position she held before the dismissal at the mine was appropriate.

    On 25 September 2018 the solicitors for WorkPac wrote to Hall Payne Lawyers, stating inter alia:

(a)    WorkPac had taken all reasonable steps available to it to secure Ms Star’s return to the mine;

(b)    WorkPac had followed the steps available to it under the Services contract to secure Ms Star’s return to the mine; and

(c)    WorkPac had been advised by the Mine Operator that Ms Star will not be permitted to return to mine.

    On 2 October 2018 WorkPac filed an application in the Fair Work Commission seeking to vary the reinstatement order, and on 4 October 2018 WorkPac appealed the Fair Work Commission decisions.

7    Mr Hazeldine deposed that his role as Open Cut Examiner (OCE) is a statutory role, required under regs 102-109 of the Coal Mining Safety and Health Regulation 2017 (Qld), and is focused on ensuring compliance with the safety and health management system in place at the mine. Further, he materially deposed:

    He worked a night shift on 9 November 2017 and heard a conversation over the two way radio between Ms Star and a grader operator named Sam. He was aware that Ms Star refused to unload her load in the dark because of procedure requirements and the grader operator kept insisting that she “just dump it”.

    In his opinion, Ms Star’s point of view was firmly in line with the requirements of the BMA Standard Operating Procedure.

    During the radio conversation he interjected and told the grader operator that it would only take five minutes to make the process compliant by setting up some lights.

    The issue was resolved when lights were set up.

    There is a procedure for random drug and alcohol testing at the mine.

8    In his affidavit, Mr Gee deposed, in summary, as follows:

    On 6 or 7 November 2017, he made a decision to inform WorkPac that, following her night shift commencing 9 November 2017, BMA would no longer require Ms Star to work at the mine.

    He decided not to communicate this decision to WorkPac or Ms Star before the end of Ms Star’s current roster cycle ending on 10 November 2017, and it is his standard practice to take that approach with labour hire or contractor workers.

    BMA has an internal resourcing team that manages the resources provided by labour hire companies like WorkPac. He emailed that team at 12.05 pm on 10 November 2017 and asked them to advise WorkPac that Ms Star was no longer required at the mine as of that day.

    The first time he became aware of the events alleged by Ms Start during her night shift of 9 November was when he read the decision of the Fair Work Commission issued on 28 August2018 in relation to Ms Star’s unfair dismissal application against WorkPac.

    He denies that any part of his reasons for deciding that BMA would no longer require Ms Star to perform work at the mine after 10 November 2017 related to her exercise of workplace rights in respect of the refusal to dump a load of rejects or the completion of a mandatory drug test.

Submissions of the parties

9    In summary, the applicant submitted as follows:

    Pursuant to s 362 of the FW Act, if BMA, for a prohibited reason, advised, encouraged or incited WorkPac to take adverse action against Ms Star and such action, if taken by WorkPac, would contravene s 340 of the FW Act, then BMA will be taken to have contravened s 340.

    WorkPac’s consequential action in preventing Ms Star from attending the mine constituted adverse action against her under items 1(b), (c) and (d) and 3(d) in s 342(1).

    BMA engaged in the contravening conduct for prohibited reasons, namely Ms Star’s refusal to dump the second load on 9 November 2017 (which was a workplace right conferred on her by s 274 of the Coal Mining Safety and Health Regulation 1999 (Qld)) and/or Ms Star’s participation in the drug test on 9 November 2017.

    There are a number of objective facts which support the inference that BMA acted for a prohibited reason, including that no reasons were given by BMA in respect of its decision to exclude Ms Star from the mine, there had been no performance issues in relation to her work during her four years there, the decision to exclude Ms Star came only a few hours after she exercised a workplace right, and, after being informed of the decision of the Fair Work Commission that Ms Star had been unfairly dismissed and reinstated to the mine, BMA continued its exclusion of Ms Star without providing any reason for its position.

    The balance of convenience weighs in favour of Ms Star for reasons including her strong prima facie case, the non-monetary benefits associated with employment at the mine, the failure of the respondent to identify why Ms Star’s return to the workplace would be problematic, and the apparent lack of prejudice to BMA to allow Ms Star to return to the mine.

10    The respondent submits, in summary:

    This application is statute barred because ss 728 and 729 prevent multiple applications relating to the same dismissal.

    The mandatory drug test was not the exercise of a workplace right, because it was not done “under a workplace instrument”. The BMA “Fitness for Work Procedure” is not a “workplace instrument”.

    In his affidavit the decision-maker, Mr Gee, denies that any part of his reasons for his decision involving Ms Star concerned either of the alleged reasons. This evidence is consistent with that of Mr Hazeldine, in the sense that Ms Star’s conduct was perfectly acceptable and consistent with her safety obligations, and it would be odd for BMA to take issue with that behaviour in having Ms Star demobilised from the mine because of it.

    Even with the assistance of s 361 of the FW Act at the trial, the union has no reasonable prospects of success on these allegations, and therefore no prima facie case.

    In respect of the balance of convenience, the highest this matter can be put for the CFMMEU was that the injunction was necessary pending trial to avoid some personal inconvenience to Ms Star. There was no evidence of any financial or other detriment to Ms Star or the union if an injunction was not issued. Measured against this inconvenience were the consequences to BMA, being that it is to accept a person to work at the mine who it did not want there. The effect of an interlocutory injunction would be tantamount to final relief. Further, there had been considerable delay in bringing this proceeding.

consideration

11    In Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [19], Gleeson CJ and Crennan J found that, in circumstances where an applicant seeks interlocutory relief, it is necessary for the plaintiff to demonstrate that:

    there is a serious question to be tried as to the plaintiff’s entitlement to relief;

    the plaintiff is likely to suffer injury for which damages will not be an adequate remedy; and

    the balance of convenience favours the granting of an interlocutory injunction.

12    In respect of the issue whether there is a “serious question to be tried”, Gummow and Hayne JJ held at [65]-[72], in summary, that:

    it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial;

    it is not necessary that the plaintiff demonstrate more than a 50 per cent chance of ultimate success;

    the issue may be understood as whether the plaintiff has made out a prima facie case for relief; and

    it is relevant to consider practical consequences likely to flow from the interlocutory order sought. Particular considerations arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application.

13    In Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 the Full Court noted at [67] that, in considering whether to grant an interlocutory injunction, the issue of whether the plaintiff has made out a prima face case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries, and the apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance.

14    At the hearing, I raised with Counsel for both parties the issue of whether I should, at this point of the proceedings, determine the question of statute bar on the basis of s 725 of the FW Act. I note that:

    BMA claims that the proceedings are statute barred because of s 725 of the FW Act;

    the union argues that the proceedings are not statute barred;

    both parties have advanced arguments supporting their respective positions, and both accepted at the hearing that the position was arguable; and

    there is no Federal Court authority relevantly considering this issue in terms raised by BMA.

15    Whether the union’s claim is statute barred is an anterior question to the substantive relief sought in the primary proceedings. In its substantive application, the union claims adverse action by BMA against Ms Star for reasons prohibited by the FW Act – however the interlocutory application currently before me requires consideration of whether (inter alia) there is a serious question to be tried as to the union’s entitlement to the final relief it has sought. If the proceedings were clearly statute barred because of s 725, it would be futile for me to grant the interlocutory relief sought. However, this is not the case. I put it to the parties at the hearing that, in this light, the anterior question relating to s 725 is more properly to be determined in the substantive proceedings, and is, at best, a neutral issue as to the question of whether the Court ought grant an interlocutory injunction. Neither party demurred from the Court adopting this approach. It follows that, for present purposes, I make no findings in respect of whether the proceedings are statute barred, but simply note that this is a contention advanced by BMA in relation to the union’s claim for relief.

16    Turning now to the question whether the union is entitled to the interlocutory relief it has sought – I am satisfied that the union has substantiated its claim.

17    First, I am satisfied that there is a serious question to be tried in terms described by the High Court in O’Neill. Counsel for BMA argued that, if the Court accepted the evidence of Mr Gee, then that was, in essence, the end of the matter. However, as Counsel for the union quite properly submitted, the position is not so absolute. In particular:

    The union’s claim against BMA concerns adverse action within the meaning of s 342 item 3 and s 362 of the FW Act. The contraventions alleged by the union can only be made out if the Court is satisfied that BMA acted for a prohibited reason or reasons in taking that adverse action.

    As has been noted in number of cases, the reversal of the onus of proof provided by s 361(1) of the FW Act 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] FCA 467; (2008) 168 FCR 340 at [69] (Ryan J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563; (2012) 64 AILR 101-641 at [63] (Greenwood J); Construction, Forestry, Mining and Energy Union v Downer EDI Engineering Power Pty Ltd [2012] FCA 661 at [12] (Logan J); 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; (2012) 64 AILR 101-753 at [45] (Bromberg J); Construction, Forestry, Mining and Energy Union v Eco Recyclers Pty Ltd [2013] FCA 24 at [44] (Bromberg J).

    The union has identified alleged exercise by Ms Star of workplace rights within the meaning of the FW Act, and adverse action (namely demobilisation) proximate in time to the exercise of those workplace rights. It is not in dispute that, because of a decision by a person in BMA, action was taken which constituted adverse action against Ms Star within the meaning of s 340 of the FW Act on 10 November 2017. The disputes identified at the hearing before me concerned whether the undertaking of a random drug test by Ms Star was the exercise of a workplace right, and whether the adverse action against her was taken for a prohibited reason or reasons.

    No reasons for the demobilisation of Ms Star by BMA have been advanced, at this stage, by BMA. As French CJ and Crennan J observed in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 (Barclay) at 517 [44],[45], whether adverse action was taken for a prohibited reason or reasons is a question of fact, which must be answered in light of all the facts established in the proceeding, and generally it will be extremely difficult to displace the statutory presumption in s 361 of the FW Act if no direct testimony is given by the decision-maker acting on behalf of the employer.

    The only direct testimony at this stage tendered on behalf of BMA is that of Mr Gee. As Mr Borenstein QC for the union submitted, the basis on which Mr Gee claimed to be the decision-maker ordering the demobilisation of Ms Star is not apparent.

    In his affidavit, Mr Gee deposed that he had made a decision on or about 6 November 2017 that Ms Star be demobilised and, it appears, banned from the mine site. I note that Mr Gee’s evidence was that this decision predated the alleged exercise of the workplace rights by Ms Star, and that he was unaware of the events of the night of 9 November 2017 until he read the decision of the Fair Work Commission concerning Ms Star’s unfair dismissal application against WorkPac. While this is sworn evidence on Mr Gee’s part, there is no documentation supporting this evidence, in particular when the relevant decision was made. I note, however, that Mr Gee does give evidence that he was aware, on 10 November 2017, of an apparent exceeding of allocated crib times by Ms Star. Otherwise, I am not in a position to unreservedly accept Mr Gee’s evidence that his decision to demobilise Ms Star predated 10 November 2017, as urged upon me by Counsel for BMA at the hearing. In the absence of supporting documentation, I can give this evidence only limited weight in the context of the reversed onus of proof borne by BMA in the substantive proceedings.

    I note the submissions by Counsel for BMA that, as a matter of common sense, it could not be inferred that BMA would demobilise Ms Star as a result of her conduct on the night of 9 November 2017, and further that there is no reason for Mr Gee to explain his decision to demobilise Ms Star when that decision predated the events of 9 November 2017. However, in the circumstances of this case, and particular the absence of explanation by BMA in terms described by French CJ and Crennan J in Barclay, I am not persuaded that there is no prima facie case in the terms claimed by the applicant. Counsel for BMA submitted that BMA took no issue with Ms Star’s conduct, however this submission is not supported by evidence. Indeed this gets back to a fundamental problem with the position taken by BMA in these proceedings – namely, that it is completely unclear as to why Ms Star was demobilised in light of her apparently previously exemplary conduct. The contention that Mr Gee is not obliged to explain his reasons for his decision to demobilise Ms Star cannot be supported in light of the onus on BMA imposed by the FW Act, and the case BMA is required to answer in the substantive application.

18    Second, the evidence before the Court indicates that Ms Star has not suffered financial or professional detriment as a result of BMA’s action in demobilising her from the mine. However Ms Star deposes to have experienced harm in her personal life as a result of that demobilisation. BMA submits that Ms Star’s evidence in this respect is vague and unsubstantiated. While I consider Ms Star’s evidence of harm to be unexceptional, and there is merit in BMA’s contentions concerning the absence of particularisation on Ms Star’s part, nonetheless I consider that there is adequate detail of harm claimed by her for the purposes of these interlocutory proceedings. In particular, I note her evidence concerning shifts, previous commonality of shifts with her partner at the mine, and diminution of her relationships with co-workers at the mine.

19    Third, I am satisfied that the balance of convenience favours Ms Star. I note BMA’s contention concerning the delay in the commencement of these proceedings However, as Mr Borenstein QC for the union submitted, the delay can be explained by the fact that Ms Star had commenced proceedings for unfair dismissal against WorkPac in the Fair Work Commission. At the hearing, BMA took no issue with this explanation.

20    Perhaps more to the point, however, BMA has adduced absolutely no evidence of inconvenience to it should Ms Star be successful in obtaining interlocutory relief. The only inconvenience submitted by Counsel for BMA was that BMA did not want Ms Star on the mine site. At this stage there is no evidence of commercial, human resources, or other detriment to BMA if Ms Star were “remobilised” to work at the mine. There is, for example, no evidence of wrongdoing on Ms Star’s part which would cause concern to BMA should she return to work at the mine, or indeed any concern at all on BMA’s part in respect of Ms Star’s skills or work performance. In fact, the only inference I am able to draw from the material before me is that, for unknown reasons, Mr Gee does not want Ms Star to return to work at the mine. This apparent, unexplained preference of Mr Gee can be contrasted with the personal detriment deposed to by Ms Star. In this respect, the applicant substantiates its case for interlocutory relief.

Conclusion

21    The applicant is entitled to the interlocutory relief sought.

Associate:

Dated:    22 October 2018