FEDERAL COURT OF AUSTRALIA

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd [2019] FCA 561

ORDERS

THE COURT ORDERS THAT:

1.    On the applicant giving the usual undertaking as to damages, until the final hearing and determination of this application, or further order, the 28 March 2019 termination of the employment of Mr John Carroll is to be treated as invalid and of no force or effect, and the respondent is to reinstate Mr Carroll in the employment he had before that date.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This application came before me as duty judge. The applicant claimed the following final relief:

1.    A declaration that the Respondent contravened s.340 and s.346 of the Fair Work Act 2009 (Cth) (the Act) on 28 March 2019 by terminating the employment of Mr John Carroll.

2.    An order pursuant to s.545 of the Act and s.23 Federal Court of Australia Act 1976 (Cth) requiring the Respondent to treat as null and void termination of the employment of Mr John Carroll effected on 28 March 2019.

3.    An order pursuant to s.545 of the Act and s.23 Federal Court of Australia Act 1976 (Cth) requiring the Respondent to reinstate Mr John Carroll to the employment he had with it prior to 28 March 2019.

4.    An order that, pursuant to s.545(2) of the Act, the Respondent pay compensation to Mr John Carroll for the loss suffered by him because of the contravention/s, together with pre-judgment interest under s.547 of the Act.

5.    The imposition of penalties on the Respondent for contraventions of s.340 and s.346 of     the Act.

6.    An order pursuant to s.546 of the Act that any penalties imposed be paid to the Applicant.

 7.    Such further or other orders as the Court deems appropriate.

2    The claim for interlocutory relief was in the following terms:

1.    An order that, until the hearing and determination of this application, or further order, the Respondent treat the 28 March 2019 termination of the employment of Mr John Carroll as invalid and of no force or effect, and reinstate him in the employment he had before that date.

 2.    Such further or other orders as the Court deems appropriate.

The evidence

3    The applicant relied first on the affidavit of Mr John Carroll affirmed 9 April 2019. Subject to these proceedings, he was employed by the respondent from 8 January until 28 March 2019. He was engaged to work as an electrician on the respondent’s project at Central Station in Sydney. The applicant also relied on the affidavit of Mr Lawrence Duff, an organiser with the applicant union, affirmed 9 April 2019.

4    The respondent relied on the affidavits of Mr Andrew William Ross, affirmed 11 April 2019, and Mr Scott Spradbrow, affirmed 11 April 2019. Mr Ross is employed in the role of Superintendent by the respondent. Mr Spradbrow is a Project Manager in the NSW Infrastructure Division of the respondent.

5    Mr Carroll deposed to a meeting with Mr Ross and Mr Spradbrow on 30 November 2018, before he was employed by the respondent, which included a statement by him that he would not be able to do night shifts. He deposed that Mr Spradbrow said that that was fine and that the respondent could easily work around that.

6    Mr Carroll deposed that from his commencement in early January 2019 to about early February 2019 he worked under the direction and supervision of Mr Ross as he was the only foreman on the project for the respondent. Mr Carroll was not aware of any issues with his performance during the period that he worked for Mr Ross. In contrast, Mr Carroll deposed, he received praise on a number of occasions from Mr Ross for his work ethic and for the quality of his work.

7    Mr Carroll deposed to Mr Arber commencing work for the respondent as a site foreman in early February 2019. He said that work that was difficult under normal circumstances became more difficult as a result of Mr Arber’s management style. Nevertheless, Mr Carroll deposed, while he was working under the direction of Mr Arber, he was not made aware of any complaints or concerns regarding his performance, with the exception of one minor matter.

8    Mr Carroll deposed to three or four statements by Mr Ross saying that he was going to assign a critical task to Mr Carroll, including in the week of 18 March 2019.

9    Mr Carroll deposed to discovering what he thought was asbestos in the trunking running down the wall of an area referred to as the water tunnel, where he commenced work on 18 March 2019. He sent messages to Mr Arber and to Mr Duff on 18 March 2019 and he deposed to discussions at the site pre-start meeting on 19 March 2019 about asbestos in the water tunnel. Mr Carroll then raised the issue of whether all the trunking all the way down the water tunnel had been removed and, when in it was suggested that a hygienist could be sent in, he said “that would be great”. He also asked to see a copy of the report that would be produced by the hygienist. Mr Carroll deposed that after he began raising safety concerns on or about 18 March 2019, he noticed that Mr Ross’ behaviour towards him changed in certain respects which he identified.

10    Mr Carroll deposed to having been assertive in relation to the issue of asbestos at a meeting of representatives from the principal contractor and the various subcontractors on 20 March 2019.

11    There was further discussion or safety issues, including asbestos, at a meeting on 21 March 2019 at which Mr Carroll nominated for the role of an HSR. This was conveyed to Mr Arber that afternoon.

12    On 27 March 2019, Mr Carroll deposed, he spoke to Mr Ross and asked for copies of all the hygienists report to be sent to his HSR email.

13    Mr Carroll then deposed to the events on 28 March 2019 when he met with Mr Ross and Mr Spradbrow during which meeting he was told that his employment was terminated. Mr Spradbrow said that the respondent did not feel that Mr Carroll was a fit for the company. Mr Carroll said: “You’re kidding. I was elected HSR last week and now this.”

14    He deposed that Mr Ross said the company needed someone who could do nights. Mr Carroll asked whether now he had been elected an HSR night shifts had become an issue.

15    Mr Carroll deposed to his personal circumstances, including his debts and liabilities, the rent he had to pay, which was relatively high, and his present poor financial situation. He deposed to his concern about his prospects for obtaining comparable employment as an electrician in the construction industry in Sydney. One reason for his concern was that he was unable to work night shifts due to his family and carer responsibilities, so that he was likely to be passed over for employment in favour of workers who can work night shifts. Another reason to which he deposed was that the terms and conditions on which he was employed by the respondent were comparably more favourable than the terms and conditions he could reasonably expect at another employer, particularly a smaller contractor whether margins were likely to be tighter.

16    Mr Duff deposed to his identification of safety issues and his communications with Mr Carroll about asbestos in mid-February and mid to late March 2019. He also gave evidence as to the election of Mr Carroll as an HSR. He also deposed to a meeting with workers at lunchtime on 1 April 2019 where none of the workers present identified that they would be prepared to nominate as an HSR. His evidence was that when an HSR is dismissed in the manner that Mr Carroll was dismissed there was a flow on effect that meant it could be difficult to obtain nominations for HSRs on the specific site and on other sites.

17    Mr Ross reported to Mr Spradbrow. He deposed to beginning to receive, in February 2019, adverse feedback from tradesmen working alongside Mr Carroll in respect of Mr Carroll’s performance. He deposed to being told of further concerns in March 2019. He reported the feedback to Mr Spradbrow. Mr Ross deposed that it was clear to him that Mr Carroll was not performing his duties effectively and was not being productive and that this was causing disharmony amongst the team. He said his discussions with Mr Spradbrow in respect of Mr Carroll’s performance were not for any other reason, including Mr Carroll’s union membership or that he had raised safety issues on site. He then deposed to the decision to terminate Mr Carroll’s employment on 28 March 2019. He deposed that Mr Carroll said during that meeting words to the effect of: “This is because I’m a HS rep and I’ve talked up about safety”. Mr Ross deposed to Mr Spradbrow saying that it had nothing to do with that, but that the decision was based on Mr Carroll’s performance. Mr Ross deposed to being told by some of his team members words to the effect that they did not want to work with Mr Carroll again.

18    Mr Spradbrow deposed in his affidavit to not being aware of any issue with Mr Carroll’s work performance in January 2019 but that that changed from February 2019 onwards. He deposed to discussions with Mr Ross in February and March 2019. He deposed to having decided that Mr Carroll’s ongoing employment was untenable and that his employment should be terminated. He raised this issue with his line report, Mr Summers.

19    Mr Spradbrow deposed that the sole reason why he decided to terminate Mr Carroll’s employment was his concern about Mr Carroll’s unsatisfactory performance in the role during the probationary period. He was aware that Mr Carroll had raised issues about safety at the site. The alleged safety issues, he deposed, had no bearing on his decision to terminate Mr Carroll’s employment.

20    He was not aware, he deposed, that Mr Carroll was a member of the union. That had no bearing on his decision to terminate Mr Carroll’s employment. Mr Spradbrow also deposed to Mr Carroll having said at the 28 March 2019 meeting “It’s because I’m the HSR and the safety issues I raised isn’t it” and Mr Spradbrow saying that that had nothing to do with it and “You’re just not a good fit”.

21    Mr Spradbrow deposed that the lack of support within the team to reinstate Mr Carroll would also be disruptive to the workplace should he return.

22    Mr Spradbrow deposed that in determining to terminate Mr Carroll’s employment he relied only upon concerns expressed to him about Mr Carroll’s work performance, none of which made any mention of Mr Carroll raising safety issues or that he was a union member, and his decision was not made because of any other matters.

The submissions of the parties

23    The applicant submitted that Mr Carroll was dismissed from his employment seven days after his appointment as a health and safety representative (HSR) and 10 days after his agitation about asbestos on the site. His becoming an HSR was the exercise of a workplace right, and making complaints about the asbestos was the exercise of a workplace right. The applicant submitted both of those came under s 340 of the Fair Work Act 2009 (Cth). That provision is as follows:

340    Protection

(1)    A person must not take adverse action against another person:

(a)    because the other person:

    (i)    has a workplace right; or

    (ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

Note:    This subsection is a civil remedy provision (see Part 4-1).

(2)    A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

Note:    This subsection is a civil remedy provision (see Part 4-1).

24    Similarly, the applicant submitted, agitating matters about health and safety was engaging in industrial action within the meaning of s 347 or the making of complaints in relation to his employment within the meaning of s 341(1)(c)(ii). His dismissal was for one or more or all of those matters. Although Mr Carroll was a probationary employee he was just as protected by the general protection provisions as an employee whose employment had been confirmed.

25    In relation to its argument that Mr Carroll was dismissed for engaging in industrial activity, the applicant did not rely on s 347(a) of the Fair Work Act for interlocutory purposes, but did rely on s 347(b) which provides, relevantly:

347    Meaning of engages in industrial activity

A person engages in industrial activity if the person:

…

(b)    does, or does not:

…

(iii)    encourage, or participate in, a lawful activity organised or promoted by an industrial association;…

…

26    The applicant submitted that the reasons given by the respondent were a pretence and the real reason, connected very closely in time, was Mr Carroll’s activities in relation to the asbestos. The applicant submitted that the connection in time between that activity and Mr Carroll’s dismissal raised a very powerful inference that they were causally connected.

27    An alternative basis upon which the applicant put its case was that one of the reasons Mr Carroll was dismissed was that the respondent needed someone who would work night shifts and that Mr Carroll’s refusal to do so constituted the exercise of a workplace right. This, it was submitted, was because the enterprise agreement, the Fredon Industries Pty Ltd Sydney Enterprise Agreement 2017, provided that the employer must first call for volunteers, and then if there were no volunteers it could direct someone to perform overtime. The applicant referred to clause 13(g) of the enterprise agreement:

g)    On selected projects, where there is a need due to client requirements or the nature of the project for variation to hours of work and/or shift work, the Company and individual Employee(s) concerned may agree for the spread of hours and/or shift system to be tailored to suit the individual project needs with provisions drafted in lieu of the above. Volunteers will be sought in the first instance, in the absence of suitable Employees volunteering; the Employer will provide at least seven days’ notice of any change to shift rosters to affected employees.

28    Mr Carroll never volunteered, and refusal to volunteer was the exercise of a workplace right he had under the enterprise agreement. If that refusal was part of the reasons for his dismissal that would be a contravention of the Fair Work Act. Just a few months before, the applicant submitted, the employer had agreed with Mr Carroll that he would not have to work night shifts.

29    As to the balance of convenience, the applicant submitted that it was obvious that the termination would cause financial and other detriment to Mr Carroll and that he gave some evidence about the serious and immediate effect that his loss of income would have on him. The applicant also submitted there was a more general effect, of significant importance, which was that the applicant and its members would not have an HSR on site. It would be more difficult for the applicant to get someone to volunteer to be an HSR because they saw what happened to the last one. Indeed no one had since volunteered.

30    The respondent submitted that the specific workplace rights and industrial activities relied upon did not appear in the applicant’s documentary material, and that this should be considered in evaluating the evidence that Mr Spradbrow gave in those circumstances, dealing with the reasons for termination of Mr Carroll’s employment.

31    The respondent submitted that reinstatement by its nature was not, in truth, interim relief. If the Court were to order reinstatement as sought on an interlocutory basis, the legal effect would be that at the time of the trial Mr Carroll would be employed and subject to all of the rights and conditions that he had prior to his dismissal, such that the application for final relief by way of reinstatement would be otiose. The practical effect of the interlocutory application would be to obtain the final relief by way of reinstatement that was sought. It was a weighty consideration that, by ordering reinstatement now, the Court would effectively be bestowing the final relief sought, other than the relief sought by way of compensation and the imposition of penalties.

32    The respondent submitted that if an interim injunction were not now granted and the applicant were successful at trial, Mr Carroll could recoup what he would otherwise be out of pocket for in the interim period.

33    As to Mr Carroll being elected an HSR, the respondent submitted that the evidence showed that this was done without notice and by a show of hands amongst a group of employees. There was a real question about whether Mr Carroll had the status of an HSR given the terms of the Work Health and Safety Regulation 2017 (NSW) at r 18, with reference to s 61(2) of the Work Health and Safety Act 2011 (NSW). It was not contemplated that at an impromptu meeting of an undefined group of workers there could be, procedurally, an election carried out for this statutory role. The respondent submitted that there was a serious issue to be tried as to whether Mr Carroll was duly elected and therefore had the status of an HSR.

34    The respondent accepted that there was a serious issue to be tried as to whether Mr Carroll had a workplace right in relation to night shift work, being the right to the benefit of the enterprise agreement, in particular clause 13(g).

35    The respondent submitted the balance of convenience did not favour an order for reinstatement because, if the interlocutory order were granted, the respondent company would have an employee that it did not want. The Court should be informed as well by the nature of the complaints detailed in the respondent’s affidavit evidence and the evidence as to the need for the work teams to work closely together and effectively. The respondent submitted there was no prejudice to the applicant if the reinstatement order was not granted. Any prejudice to Mr Carroll if his claims were vindicated could be remedied at trial by reinstatement and compensation. The respondent also pointed to Mr Carroll’s very short period of service with it, which meant issues of loss of continuity of service did not loom large in the present case. The respondent submitted that the prospects of Mr Carroll obtaining alternative employment in the industry were not so slim as to meaningfully weigh in favour of reinstatement. He had moved around, and had 12 years of experience in, the construction industry, and had extensive qualifications. There was evidence from Mr Spradbrow as to the shortage of construction electricians in the Sydney labour market.

36    In reply, the applicant submitted that it was significant that what was missing from the respondent’s affidavits was any suggestion that at any time before 28 March 2019 Mr Carroll was told that the respondent was not happy with how often he was on his mobile phone or that he needed to improve his work performance. Mr Carroll said he was given additional responsibility on 18 March 2019. The respondent’s affidavits did not deny that. The applicant would be submitting at trial that there was a sound basis to reject the respondent’s evidence that this termination was because of performance issues, which issues were never raised with the employee in circumstances where he possessed skills which, on the respondent’s evidence, were in shortage.

37    The applicant submitted that it appeared from Mr Ross’s affidavit that he was the moving force behind the termination and so his reasons would be relevant too: see Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; 129 IR 251 at [37].

38    The interlocutory order for reinstatement did not, the applicant submitted, prevent the employer from acting on its rights under the contract: it did no more than undo the allegedly unlawful act of termination.

39    The applicant submitted that there was no real evidence that the employer could not use the services of Mr Carroll. There were just some complaints about his work performance which, even if they were true, should not weigh very heavily in the scales.

40    The applicant did not accept that the respondent was unaware that the issue of Mr Carroll’s status as an HSR would be raised on the interlocutory application. On the respondent’s evidence Mr Carroll raised that point at the meeting on 28 March 2019 at which his employment was terminated.

41    The applicant submitted that it all came down to assessing the evidence of reason. Whether or not Mr Carroll was an HSR did not matter because he was still making complaints and engaging in industrial activity in relation to health and safety on the site, and they were totally independent from the HSR issue. The applicant’s case was no weaker if Mr Carroll was not properly appointed as an HSR.

42    The applicant submitted there was prejudice to it if Mr Carroll was not reinstated. The applicant had had a person appointed as an HSR, at least purportedly, by the group. Within a few days he was sacked, and the applicant could not get anyone else to take the role.

43    The applicant submitted that there was serious prejudice to Mr Carroll. He had to try and find work. His evidence was that he would find that difficult. He had a job and lost it, on the applicant’s case, for the reasons alleged. The applicant again referred to its contention that there was no evidence, not even retrospective evidence, of complaints to Mr Carroll about performance. The respondent’s affidavits did not say: “We told him we were troubled.” Mr Carroll was a probationary employee. That was the time when an employer tells an employee to lift their game. The applicant submitted that there was a strong case that the respondent’s evidence of reason to terminate would not be accepted at trial.

44    The applicant union offered the usual undertaking as to damages.

Consideration

45    I turn first to consider whether there is a serious question to be tried as the evidence now stands. It is not possible to come to any more than a provisional view of the evidence, given that what is before the Court is the bare affidavit evidence and there has been no oral evidence either in chief or in cross-examination.

46    I accept the submission that the reverse onus is relevant in assessing whether there is a serious question to be tried: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd [2009] FCA 726; 184 IR 333 at [24]-[25]. In assessing the strength of the applicant’s case for the purpose of this interlocutory application, I take account of the ultimate availability at trial of the presumption in s 361(1): Police Federation of Australia v Nixon [2008] FCA 467; 168 FCR 340 at [69].

47    In my opinion, there is a serious question to be tried in relation to the reasons for the termination of Mr Carroll’s employment on 28 March 2019 and whether those reasons included proscribed reasons.

48    I regard it as significant that, although both Mr Ross and Mr Spradbrow deposed to adverse feedback from tradesmen working alongside Mr Carroll in respect of his performance from February 2019, the evidence does not show that these matters were drawn to Mr Carroll’s attention. If Mr Carroll was, for example, using, or browsing on, his mobile phone at times when he was expected to be performing his duties, but was not told about it so that he could deal with it, it seems to me to call into question, at this interlocutory stage, the cogency or completeness of the respondent’s evidence regarding its reasons for terminating Mr Carroll’s employment.

49    I also consider there is a serious question to be tried arising from the sequence of events, given that the respondent’s stated reasons for terminating Mr Carroll’s employment, uncommunicated to Mr Carroll though they were until his employment was terminated, arose in circumstances where, on the evidence as it presently stands, Mr Ross had some reservations about the union and when Mr Carroll had raised health and safety issues. Further, Mr Ross had previously indicated that he would be giving Mr Carroll tasks of responsibility. I take into account Mr Carroll’s evidence as to Mr Ross’ change of behaviour towards him and the timing of that.

50    It is to be recalled that Mr Carroll was a member of the union at all times throughout his employment with the respondent and the evidence as it stands suggests that at least Mr Ross knew this. Mr Carroll deposed that it was well known on the project that he was a member of the union because he wore an ETU shirt to work every day before changing into his hi-vis work wear. He then changed back into his ETU shirt before he left the project at the end of his shift.

51    In relation to the applicant’s contention that Mr Carroll was dismissed for refusing to volunteer for night shift work, Mr Carroll, in his affidavit evidence, referred to Mr Ross saying, at the meeting on 28 March 2019 at which Mr Carroll’s employment was terminated, “[l]ook, we need someone who can do nights”. The evidence on behalf of the respondent, for present interlocutory purposes, does not put that in issue.

52    I note that the respondent accepted that there was a serious issue to be tried as to whether Mr Carroll had a workplace right in regard to night shift work, being the right to the benefit of the enterprise agreement, in particular clause 13(g).

53    As to whether the exercise of that workplace right formed part of the respondent’s reasons for the termination, I accept that the reason attributed to Mr Ross on the present state of the evidence would be relevant to the Court’s assessment of those reasons: Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; 129 IR 251 at [37]. This aspect of the applicant’s case would therefore appear to raise a serious question to be tried as to whether Mr Carroll was dismissed for reasons that included his exercise of a workplace right.

54    I also consider there to be a serious question to be tried as to Mr Carroll’s status as an HSR and whether that had any bearing on the respondent’s reasons for terminating Mr Carroll’s employment. I note the respondent, despite its submissions regarding the evidence as to the procedure adopted in light of the terms of r 18 of the Work Health and Safety Regulation and s 61(2) of the Work Health and Safety Act, accepted there was a serious question to be tried as to whether Mr Carroll was duly elected and therefore had the status of an HSR.

55    The real issue of substance is the balance of convenience.

56    I do not accept the submission on behalf of the respondent that reinstatement by its nature is not, in truth, interim relief and that by ordering reinstatement now, the Court would effectively be bestowing the final relief sought, other than the relief sought by way of compensation and the imposition of penalties.

57    In my opinion, granting the interlocutory relief sought would effect the reinstatement of Mr Carroll’s employment on the same terms and conditions. If at, or subsequent to, trial the Court dismissed the application for final relief by way of reinstatement the position would return to that which obtained before the grant of interlocutory relief to preserve the status quo. That is, the interlocutory orders would expire or be discharged and Mr Carroll’s employment regarded as terminated.

58    I take into account the factors put on behalf of the applicant. Those factors relate both to the interim monetary and non-monetary consequences for Mr Carroll and the difficulties that the applicant union will have, at least in the short term, in not having an HSR in the workplace. I take into account Mr Carroll’s financial situation, which he says is poor, and his evidence as to his poor prospects of obtaining work with one of the major contractors.

59    On the other side of the balance is the issue of the small number of people employed by the respondent in the relevant workplace and the evidence that Mr Carroll’s work was causing disharmony amongst the team. I find that the team had approximately 8 members as at the end of March 2019 and approximately 14 members as at 11 April 2019. I find that teamwork and interaction between team members is required and that the nature of the work is such that the workers need to work effectively and closely together.

60    The evidence before me suggests, by way of hearsay, that some of the team members do not want to work again with Mr Carroll. However, for present purposes, I would not regard as significant or substantial the extent of any disharmony on that basis. As I have said, the evidence as it stands does not suggest that these matters were put to Mr Carroll. If there had been or was about to be substantial disharmony caused by Mr Carroll’s work performance, I find it likely that attempts would have been made to improve his performance and reduce any disharmony before terminating his employment.

61    I also take into account that there is no direct evidence that the respondent has no work that Mr Carroll could usefully perform in the interim, that is, between now and an early final hearing.

Conclusion and orders

62    In my opinion, on the applicant’s usual undertaking as to damages, and in the expectation that the parties are available for a final hearing of 2 to 3 days in July 2019, the appropriate order is to grant the interim relief sought.

63    I will give the parties an opportunity to be heard in relation to the precise terms of interim relief, their availability for a trial in July 2019, and a timetable for the necessary pre-trial steps to be taken.

Associate:

Dated:    26 April 2019