FEDERAL COURT OF AUSTRALIA

Australian Workers’ Union v Chemring Australia Pty Ltd [2019] FCA 750

ORDERS

THE COURT ORDERS THAT:

1.    The application for interlocutory relief contained within the originating application dated 13 May 2019 be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

SNADEN J:

Introduction

1    The applicant (the “AWU”) is an organisation registered pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth). It applies on its own behalf and on behalf of its member, Ricky Smith (hereafter, “Mr Smith”), for relief in respect of disciplinary action that has been taken and/or is threatened against Mr Smith by his employer, the respondent (hereafter, “Chemring”).

2    The application alleges that Chemring has breached, or is about to breach, four provisions of the Fair Work Act 2009 (Cth) (the “FW Act”): namely, ss 50, 340(1)(a), 346(a) and 346(b). In summary form, the claim is twofold: first, that the respondent has breached s 50 of the FW act by failing to comply with an obligation imposed upon it by an enterprise agreement; and, second, that Mr Smith has, contrary to the scheme for which Part 3-1 of the FW Act provides, been subjected (or is at risk of being subjected) to adverse action (within the meaning attributed to that phrase by s 342(1) of the FW Act) for various prohibited reasons.

3    The application presses for various remedies, including compensation, penalties and injunctive relief. It also presses for interlocutory injunctive relief, and it is to that application that these reasons relate. Specifically, the AWU moves the Court for interim orders restraining Chemring from taking or continuing to take disciplinary action, or further disciplinary action, against Mr Smith, and from terminating or threatening to terminate his employment, because of or in connection with the events that are described in more detail below. As an industrial association (within the meaning attributed to that phrase by s 12 of the FW Act), its standing to seek the relief that it does is not doubted: FW Act, s 539(2).

4    The application was filed on Monday, 13 May 2019. It was initially referred to the Court’s duty judge, who declined to hear the interlocutory application for want of apparent urgency, instead directing that it be allocated in the normal way and listed for rapid case management. The matter was then allocated to my docket and listed for case management on Monday, 20 May 2019. At that hearing, orders were made for the provision by the respondent of affidavits and submissions responsive to the AWU’s application for interlocutory relief. Those directions were complied with and the application for that interlocutory relief was heard on Thursday, 23 May 2019.

5    The AWU read four affidavits in support of the application, namely: an affidavit of Tanya Maree Harrington, affirmed on 13 May 2019; an affidavit of Leah Christine Tremble, affirmed on 15 May 2019; an affidavit of Hugh Benjamin Crosthwaite, affirmed on 20 May 2019; and a second affidavit of Tanya Maree Harrington, affirmed on 22 May 2019. Ms Harrington is an organiser employed by the AWU. Ms Tremble is a former employee of the respondent’s. Mr Crosthwaite is a solicitor who acts for the AWU.

6    By way of resistance to the interlocutory application, Chemring read two affidavits of its own: an affidavit of Kirk Christopher Berenger, sworn on 20 May 2019; and an affidavit of Joseph Farrah, sworn on 21 May 2019. Mr Berenger is employed by Chemring as its operations director. Mr Farrah is employed by Chemring as its Managing Director.

The evidence

7    In summary form, the evidence to which those six affidavits give voice is as follows.

8    Chemring is a developer, manufacturer and supplier of pyrotechnics, and defence and marine safety products (which include what are commonly known as “countermeasures”). It operates a manufacturing operation based in Lara, Victoria. Mr Smith is employed as a production operator at that Lara facility and has been for approximately three-and-a-half years.

9    Mr Smith is a delegate of the AWU and has been since August 2018. He is also an elected occupational health & safety representative (or “HSR”). As at 11 April 2019—a date that assumes central significance to this application—Mr Smith was the AWU’s only delegate and the only HSR at Chemring’s Lara facility.

10    Mr Smith’s employment—and that of those at the Lara facility who are eligible for membership of the AWU—is governed by the terms of an enterprise agreement made pursuant to part 2-4 of the FW Act, specifically the Chemring Australia Pty Ltd Collective Agreement 2016-2018 (hereafter, the “EA”). The nominal expiry date of the EA was 31 October 2018, and the AWU and Chemring have been bargaining since July 2018 for a new enterprise agreement to replace it. In support of the claims advanced by the AWU in the course of that bargaining, employees at Chemring’s Lara facility have engaged in protected industrial action (within the meaning attributed to that phrase by s 408 of the FW Act).

11    Mr Smith has, over the course of his employment, advanced AWU causes at Chemring’s Lara facility, including by contributing to the AWU’s bargaining efforts, and organising (or assisting with the organisation of) and participating in protected industrial action.

12    The AWU says (and there is no obvious reason to doubt) that the bargaining is contentious. Chemring is said to have pursued claims that would result in wage reductions for certain employees. It has done so at a time that it has resolved to wind back part of its operations (the pyrotechnics part) and, on the back of new work that it has recently secured, ramping up a different part (the “countermeasures” part, within which there are, apparently, plans to employ a significant number of new employees in the near future). Recently, an offer that it made to the AWU (which is the employees’ sole bargaining representative) was summarily rejected. Chemring has since resolved to make overtures about its proposal directly to its employees.

13    In the course of manufacturing its products, the Lara facility generates volatile waste materials, which are disposed of by means of incineration within an area known as the burn ground. Incineration of waste materials is, for obvious reasons, initiated remotely—that is to say, a safe distance away from the burn ground—in (amongst other ways) disposal tanks. To that end, materials are ignited via charge cables that extend from the burn ground to where disposal employees oversee the process. Operators initiate the ignition by transmitting an electrical charge via those cables. In order to initiate that charge, the computer system that oversees the process has to be “armed”, which is achieved by means of a special key.

14    On 11 April 2019, Mr Smith and another employee, Leah Tremble, were involved in what the respondent has characterised as a serious safety incident whilst undertaking disposal activities at or around the burn ground. In the course of their duties, they sought to initiate (via the process described, however crudely, above) a burn of material contained within a disposal tank. It didn’t work. They then set about ascertaining why. In the course of doing so, they had occasion to leave the safe operator’s area and venture into the burn ground. Access to that area was secured by use of a key, specifically the same key as is used to arm the computer system that is used to initiate waste ignitions. Mr Smith and Ms Tremble took the key from the operator area down to the gate through which the burn ground is accessed, where they used it. They entered the burn ground and performed various diagnostic tasks, the precise particulars of which needn’t be here recorded.

15    In doing what they did after the initial “misfire”, the respondent contends that Ms Tremble and Mr Smith failed to observe work instructions governing those activities. Two such failures are alleged: first, it is said that Ms Tremble and Mr Smith failed to conduct what is known as a “continuity check” (which, again in simple terms, involves the testing of the cables to ensure that they are competent to transmit the charge that ignites the target waste material); and, second, that they did not (or, at the very least, that Mr Smith did not) use what are known as “lock-out tag-out” locks to secure the burn ground access key.

16    That latter failure was, it is said, in breach of a work instruction (“Work Instruction Document Number WI-0609”—hereafter, the “New Work Instruction”) that was introduced at the Lara facility in January 2019. The AWU contends—and leads evidence to substantiate—that it was introduced in contravention of clause 7.1 of the EA, which requires Chemring, in advance of implementing certain work-related changes, to consult its workforce about them and afford employees an opportunity to provide feedback on them. Chemring’s evidence is that that consultation, if required (as to which, more is said below), did occur and that its implementation of the instruction was effected lawfully.

17    The conduct of Mr Smith and Ms Tremble was quickly identified. Both Mr Smith and Ms Tremble were immediately suspended on full pay pending an investigation into what occurred. Mr Smith was, to that end, interviewed on 18 April 2019. Ms Tremble was also interviewed. According to the respondent’s evidence, Ms Tremble acknowledged that she had, at least in part, failed to follow applicable work instructions on the day in question, and that it was a mistake for her to have done so. Mr Smith denied that he had done anything wrong.

18    By a letter dated 1 May 2019, which was provided the following day, Chemring asked Mr Smith to show cause why his employment should not be terminated. That letter records, under the heading “Additional Information”, Mr Smith’s status as an HSR.

19    Mr Smith lives with his wife and daughter. They have a combined annual income of a little over $100,000 gross (and a little under $90,000 net), split roughly 50-50 between them, from which they have ongoing monthly mortgage and medical expenses of approximately $1,370. Their house is said to be in need of repair, for which Mr Smith and his wife have been saving funds. Mr Smith has recently suffered sleeplessness and anxiety, as well as some tension in his relationship with his wife, all of which he attributes to his suspension and potential dismissal.

The competing cases advanced

20    Section 342 of the FW Act defines what is meant by “adverse action”. Relevantly, an employer takes adverse action against an employee if it dismisses the employee, injures the employee in his or her employment, alters the position of the employee to his or her prejudice, or threatens to do any of those things.

21    Part 3-1 of the FW Act is entitled “General protections”. By the scheme thereby constituted, adverse action that is taken against employees (amongst others) is unlawful if taken for any one or more of various proscribed reasons. Of significance to this application are ss 340(1) and 346. The former relevantly prohibits adverse action taken on account of a person’s possession or exercise of a “workplace right”. The latter relevantly prohibits adverse action taken on account of a person being a member or officer of an industrial association, or of their engagement in “industrial activity”.

22    By s 341(1) of the FW Act, a person is deemed to possess a “workplace right” if (amongst other things) he or she has a role or responsibility under a workplace law or workplace instrument. There is no obvious dispute (and, in any event, it is plainly arguable) that, by his status as an HSR, Mr Smith possessed such a role or responsibility.

23    By s 347 of the FW Act, a person is deemed to have engaged in industrial activity if (amongst other things) he or she becomes or remains an officer or member of an industrial association, encourages or participates in a lawful activity organised or promoted by an industrial association, complies with a lawful request made by, or requirement of, an industrial association, or represents or advances the views, claims or interests of an industrial association.

24    The AWU contends that Chemring subjected Mr Smith to adverse action, by suspending him, writing to him on 1 May 2019 to ask that he show cause why his employment ought not be terminated, and (thereby) threatening to dismiss him from his employment. It contends that Chemring did each of those things because (or for reasons that included that) Mr Smith:

(1)    is an officer or member of the AWU;

(2)    has engaged in activities in his capacity as such;

(3)    is an elected HSR; and

(4)    has engaged in industrial activity (including in the form of his participation in the AWU’s bargaining campaign, and his organisation of and participation in protected industrial action).

25    There is little doubt—and I accept—that, if the AWU establishes at trial that the instances of adverse action that are said to have been visited upon Mr Smith (none of which appears, at least at this stage, to be in doubt) were visited upon him because of any one or more of those reasons, then it will establish that Chemring contravened at least one of ss 340(1), 346(a) and 346(b) of the FW Act.

26    Further, the AWU contends that the New Work Instruction constitutes one of the “policies and procedures in place within [Chemring] that relate to the relationship between [Chemring] and [its] employees”. If that is so, it is said, its implementation (insofar as it involved, as it did, replacement of an earlier instruction) required consultation in accordance with clause 7.1 of the EA. It contends that that did not occur. It attributes (at least in part) Mr Smith’s suspension, investigation and potential dismissal to the implementation of the new Work Instruction and contends that the Court should, in effect, undo (by means of interlocutory injunctive relief) that which it says was done in contravention of s 50.

27    Chemring, in response, contends that the instances of adverse action to which Mr Smith has been subjected (or may soon be subjected) were animated by concerns that it has genuinely formed that his conduct on 11 April 2019 gave rise to a serious safety concern. It says that, in the circumstances, it would have taken the same action against him—and anybody else—regardless of his (or their) industrial status or activity. It positively denies that the reasons (or, at least, most of the reasons) that the AWU attributes to the adverse action played any part in anything that it did.

28    Chemring says, further, that the EA does not, on a fair reading, require prior consultation about every change at its Lara facility; but that, in any event, the introduction of the New Work Instruction was the subject of adequate consultation.

29    The AWU dismisses as without proper or adequate foundation any suggestion that Mr Smith was guilty of breaching Chemring’s safe work protocols. It identifies a number of bases upon which it posits that there is reason to doubt whether, in fact, Mr Smith’s conduct of 11 April 2019 was properly described as a serious safety breach. It suggests that, by reason of that doubt, the Court should treat with suspicion Chemring’s evidence about the subjective reasons that it says have animated the decisions that it has made vis-à-vis Mr Smith.

30    In particular, the AWU points to Chemring’s “Behaviour at Work Guidelines”, which, amongst other things, make provision for the manner in which Chemring should respond to or manage safety violations at its Lara facility. Those guidelines contain a definition of “Serious Safety Violation” (original emphasis). A serious safety violation is one that “…involves a substantial probability that death [or] serious physical harm could result”. Other types of violations—namely, those that involve “wilful and imminent danger” or those that are repeated—also qualify. On Chemring’s own evidence, so the AWU contends, the events of 11 April 2019 could not have amounted to a Serious Safety Violation because there was a low probability that they might result in the sorts of consequences to which the definition relevantly points. In any event, the guidelines mandate that an employee’s first such violation should be met with a written warning, rather than dismissal. All of this, the AWU contends, points to there being some other reason or reasons—that is, a reason other than the legitimate safety concerns that Chemring purports genuinely to have held—as being the reason or reasons for the adverse action to which Mr Smith has apparently been subjected.

31    Further, the AWU contends that dismissal in Mr Smith’s case stands in stark contrast to the manner in which Chemring responded to what was, at least on face value (if not clearly), a more significant safety incident that occurred in 2018, when a quantity of volatile material exploded at the Lara facility. It cites evidence that, on that occasion, there was inadequate testing of some illuminating flare material, despite requests having been made for it by Mr Nick Forster, a quality assurance chemist whom Chemring employs. It is suggested that either the Chemring manager to whom that testing request had been directed, Mr Maher, or the manager with responsibility overall for health and safety at the Lara facility, Mr Kilpatrick, should be understood to have failed, in some way, in his duty; and, thereby, to have committed a safety violation at least as grave as that of which Mr Smith stands accused. Both Kilpatrick and Maher remained employed after the explosion; a fact from which the AWU contends that some suspicion about Chemring’s real reasons in the present case should readily be drawn: why, it is asked rhetorically, would Maher and Kilpatrick be spared but Smith hasn’t been?

32    In a related way, the AWU points to the different ways that Chemring has treated Mr Smith and Ms Tremble. Ms Tremble was stood down but her employment was not terminated on account of her involvement in the events of 11 April (it, instead, terminated by reason of her acceptance, prior to 11 April 2019, of a voluntary redundancy package). This assumes particular significance because, so the AWU contends, Ms Tremble was Mr Smith’s leading hand on 11 April 2019, and his conduct was, it is said, engaged in either with her knowledge or at her instruction.

33    Next, the AWU says that Chemring, despite having had ample opportunity, has not expressly denied that any of the relevant decisions that it has made vis-à-vis Mr Smith have been made because of, or for reasons that include, his activity (as opposed to his status) as a member or delegate of the AWU. To the contrary, it is said that Chemring’s evidence is couched in language that is vague and inexhaustive. For example, it points to the evidence of Mr Farrah, who deposes to the fact that he “…took the view that termination of employment may be an appropriate outcome [for Mr Smith], including because of the assessment that Mr Smith had intentionally failed to comply with safety procedures” (emphasis added).

34    Although the above stands as a fair summary, there are, as with most interlocutory applications of this kind, numerous conflicts in the evidence. The precise particulars of what occurred on 11 April 2019—and whether they are capable of fairly constituting what happened as matters of serious safety concern—are the subject of dispute. It is neither necessary nor possible—and I am, of course, not asked—now to make findings on exactly what occurred or how serious it was.

Principles governing interlocutory injunctive relief

35    The principles that govern the Court’s discretion to grant interlocutory injunctive relief are well-settled and not in dispute. In order to qualify for the relief that it seeks, the AWU must demonstrate that it has a prima facie case and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 81-84 (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed).

36    By its written submissions, the AWU helpfully summarised the relevant principles as follows:

32.     An applicant for an interlocutory injunction needs to establish that their prima facie case has a sufficient likelihood of success to justify the preservation of the status quo pending the trial. The strength of the likelihood depends upon the nature of the rights asserted and the practical consequences likely to flow from the order sought: O’Neill at [65]. See the discussion of the approach in Quinn v Overland (2010) 199 IR 40 at [45]-[46] per Bromberg J and AWU v Dee Vee [2012] FCA 988 at [17]-[18] per Tracey J.

33.     When considering the grant of an interlocutory injunction, the issue of whether the applicant has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience: see Samsung Electronics Co. Ltd v Apple Inc. [2011] FCAFC 156; (2011) 217 FCR 238 at [67] citing with approval Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595; (2009) 81 IPR 339 per Sundberg J at [15].

34.     In Bullock v FFTSA (1985) 5 FCR 464, Woodward J (with whom Smithers and Sweeney JJ relevantly agreed) stated at 472:

“Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it.”

37    I am grateful for that summary and adopt it in full. I would add only that an applicant for interlocutory injunctive relief must, in showing that the balance of convenience favours that outcome, point to inconvenience for which an award of damages at trial would not be a sufficient remedy: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153 (Mason ACJ); CEPU v Blue Star Pacific (2009) 184 IR 333, 339 (Greenwood J).

Serious question to be tried

38    I do not understand there to be any serious doubt that Mr Smith has been subjected to adverse action. I accept the submission of the AWU that, by standing Mr Smith down and requiring him to show cause why his employment should not be dismissed, Chemring has taken adverse action against him. I also accept the submission of the AWU that Chemring’s letter of 1 May 2019 constitutes a threat that Mr Smith’s employment will or might be terminated. At the very least, there is a prima facie case to those effects.

39    With the possible exception of the 1 May 2019 letter (and the reference, referred to above, that it contains to Mr Smith being an HSR), the AWU has no direct evidence that any of the adverse action to which Mr Smith has been subjected was visited upon him for any one or more of the proscribed reasons that it identifies. That is not a criticism; indeed it is hardly surprising. Instead, the AWU contends, in the orthodox way, that the serious question or questions in respect of which interlocutory injunctive relief is sought arise, first, as a matter of inference from the facts that I have summarised above; and, second, from the existence of the reverse onus of proof to which s 361(1) of the FW Act gives voice. It is said that, in combination, those circumstances bespeak a “strong prima facie case” for the relief that is sought.

40    Chemring concedes that there is a serious question to be tried but describes it as weak.

41    With respect, I agree. Insofar as the prima facie case arises as a matter of inference, it is, in my view, weak, if not very weak. Mr Smith’s history of activism, his status as a delegate and HSR, and his involvement in bargaining long pre-date the events of 11 April 2019, as does the contentious nature of that bargaining (if it be properly described as such) and the protected industrial action that has been engaged in in support of it. It is, of course, possible that there is a causal relationship between those facts and the adverse action to which Mr Smith has been subjected. But to say, as the AWU does, that that causal relationship is evident as a matter of inference is, respectfully, to take too generous a view of the evidence. Whether such a causal link exists appears more the subject of speculation than inference.

42    In saying that, I accept, as the AWU contends, that there are grounds upon which it might be doubted that the events that transpired on 11 April 2019 rise to the standard of “serious safety violation” or any reasonable analogue thereof. The AWU’s attack focuses, not unreasonably, upon whether or not what Mr Smith did can fairly be described as such. That, however, is not the test that will inform whether or not the claims that it advances under part 3-1 of the FW Act should succeed. At issue is whether Chemring genuinely believed that Mr Smith’s conduct was adequate to fit that description and acted upon that belief (as opposed to some other, prohibited reason or reasons) in making the decisions about him that the AWU seeks to impugn. If the AWU succeeds on this line of attack, it might well establish that that belief was wrong; but that is not the same as establishing that it wasn’t genuinely acted upon (accepting, as I do, that the falsity of the belief is at least a factor that might inform the Court’s assessment of its genuineness).

43    To that end, I do not accept that the bases upon which one might doubt the correctness of Chemring’s assessment of Mr Smith’s conduct are sufficient to counter the evidence that that assessment was genuinely held and acted upon, whether it was correct or otherwise. To put it another way, I do not accept that they substantially displace the strong prima facie case that Chemring advances by way of defence to the charge that it did anything to Mr Smith for reasons that part 3-1 of the FW Act proscribes. Chemring has led evidence that explains, for example, why it formed the view that Mr Smith had deliberately breached its work instruction (namely, because he indicated that he had turned his mind to the things the he failed to do and decided not to do them), why it considered that he was defiant when confronted (namely, because, when confronted, he maintained that he had done nothing wrong), why it considered that his conduct amounted to a “serious safety violation” (namely, because the “Behaviour at Work Guidelines” apparently contemplate that a “Conscious disregard of safety postings/signs” should qualify as such), why it treated Ms Tremble differently (namely, because she acknowledged her mistake), why it considered Mr Smith’s conduct to be serious enough to warrant his potential dismissal (namely, because of the views that were formed that his conduct was deliberate and that he was defiant), why Ms Tremble’s status as a leading hand on the day in question was not sufficient to absolve Mr Smith of his safety responsibilities (namely because those responsibilities were not overridden by her supervision of him), and why it did not respond to the 2018 explosion in the same way that it responded to Mr Smith’s alleged conduct of 11 April 2018 (namely, because it considered the former to be the product of process error, whereas the latter involved contravention of a work instruction).

44    Whether any or all of that evidence is accepted at trial remains to be seen. For now, Chemring’s evidence that it genuinely held the view that the adverse action to which it has arguably (if not obviously) subjected Mr Smith was warranted on account of his conduct on 11 April 2019—and not because of reasons prohibited by part 3-1 of the FW Act—is, if nothing else, superficially compelling. It is logically consistent and erected upon what appears to be a sound (and partially documented) evidential foundation (an observation that I make only for the purposes of this interlocutory application). By contrast, the AWU’s attack upon the genuineness of Chemring’s stated reasons rests, if not upon speculation, then upon inferences of delicate provenance.

45    The existence of the reverse onus of proof in s 361(1) does not, in my view, overcome that deficiency. There is at least some scope for thinking that it ought not to be considered at all. Section 361(2) of the FW Act serves, at least at first glance, to exclude the reverse onus from the Court’s consideration as to whether or not it should grant relief of the kind now sought. More accurately, it serves, at least at first glance, to preclude, insofar as concerns an assessment of whether or not there exists a prima facie case, any reliance upon the existence of the reverse onus. It is not apparent to me how else s 361(2) might be read.

46    That observation, though, is at odds with what Ryan J said in Police Federation v Nixon (2008) 168 FCR 340. At 361, his Honour observed (in respect of the equivalent section in a predecessor Act):

If the effect of s 809([2]) is to require an applicant to demonstrate, in the absence of any evidence at all from the respondent, a serious question to be tried as to each element of the cause of action, including the respondent’s reason or reasons for the impugned conduct, the applicant may suffer irreparable damage before he or she can be accorded a final trial at which, ex hypothesi, the presumption would enable the cause of action to be made out. I consider that such a restrictive and apparently unjust interpretation should only be given to a provision which occurs in what seems to be a beneficial or facultative legislative scheme if the language of the subsection intractably requires it. In my view, a construction more consonant with the statutory context and history and the preparatory material is that s 809(2) precludes the court from finding, on an application for an interim or interlocutory injunction, even provisionally, by recourse solely to the presumption, that the respondent’s conduct was for a proscribed reason or for reasons that included a proscribed reason. However, I do not construe s 809(2) as preventing the court, in assessing whether there is a serious issue to be tried, from having regard to the availability of the presumption in the final determination of the application. Similarly, I consider that account can be taken of the ultimate availability of the presumption when assessing the respective strengths of the case for the applicant and that for the respondent as part of exercising the general discretion to grant or withhold interlocutory relief.

47    In Construction, Forestry, Mining and Energy Union v Downer EDI Engineering Power Pty Limited [2012] FCA 661, Logan J made a similar observation, albeit in the context of an application in which the question was not live. Other decisions have applied what Ryan J said in Nixon: AMWU v Visy Packaging Pty Ltd (No 2) (2011) 213 IR 48, 52-53 (Murphy J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563, [63] (Greenwood J); AMWU & anor v McCain Foods (Aust) Pty Ltd [2012] FCA 1126, [45] (Bromberg J).

48    With great respect to his Honour—an eminent and highly-respected judge, renowned for his expertise in the field of industrial law—I am unable to reconcile what is said at [69] of Nixon with what appear, to me, to be the plain words of s 361(2). To have, in the process of assessing whether there is a prima facie case for interim injunctive relief, regard to the existence of the reverse onus for which s 361(1) provides is, I think, to proceed as though s 361(1) “appl[ies]” in that context. Yet s 361(2) says that it doesn’t.

49    In any event, Chemring did not in this application contend that Nixon (or any of the authorities that have followed it) ought not to be followed or was plainly wrong (cf Construction, Forestry, Mining and Energy Union v Angelo Coal (Capcoal Management) Pty Ltd (2016) 266 IR 185, 199-200 (Katzmann J)), if indeed I would need to form that view in order not to follow it (as to which, see Undershaft (No 1) Ltd and Another v Federal Commissioner of Taxation (2009) 175 FCR 150, 165-169 (Lindgren J); Woolworths Limited v BP PLC (2006) 154 FCR 97, 131 (Heerey, Allsop and Young JJ)). Despite my hesitation, I proceed on the basis that the existence of the reverse onus is something to which I can properly have regard in assessing whether there exists a prima facie case. Doing so plainly assists the AWU. However, I remain of the view that its prima facie case is, at best, weak; and that the existence of the reverse onus does not materially improve its prospects.

50    All the more is that so given the direct evidence that Chemring has led about why it was that Mr Smith was subjected to the tribulations that he has. It is, as I have already said, possible that, at trial, that evidence is nullified or rejected; but, at an interlocutory level, it is appropriate that I should take account of it in assessing the relative strengths of the opposing cases (and, in particular, the strength of the applicant’s prima facie case). For reasons to which I have already adverted, I do not consider that the AWU’s collateral attack on the correctness of Chemring’s characterisation of Mr Smith’s conduct materially undermines that evidence as to the subjective state of mind that animated its decisions. Further, I consider that it likely goes (or would, if accepted at trial, likely go) a long way to nullifying the evidential assistance that s 361(1) affords the AWU.

51    I also do not consider that the reference in the 1 May 2019 letter to Mr Smith being an HSR, or the failure of Chemring’s witnesses to date to positively assert that Mr Smith’s activity (as opposed to status) as a member or officer of the AWU substantially undermines that evidence in such a way as might materially improve my assessment of the AWU’s prima facie case. It is tolerably clear that the reference to his status as an HSR is, more likely than not, a reference to why it was that Chemring felt that he ought, of all people, not to have done what he did. I consider it unlikely that that should qualify his status as an HSR as an operative reason for any of the decisions that the AWU seeks to impugn (although I accept, as is plain, that it could). Likewise, the failure of Chemring’s witnesses to take the opportunity to positively assert that they were not actuated in any way by Mr Smith’s activities (as opposed to status) as a member or officer of the AWU is not especially significant. Chemring has led a wealth of evidence as to why it did what it did. On any fair reading of its evidence, it denies the allegations that the AWU puts against it. It leads a wealth of evidence that is capable (if believed) of sustaining the subjective states of mind that it identifies as the reasons for its conduct.

52    I accept that those matters (the reference to Mr Smith as an HSR and Chemring’s failure to positively deny all of the prohibited reasons that the AWU attributes to its conduct) inform the strength of the AWU’s prima facie; but it remains, in my view, shadowed by the wealth and nature of the evidence of the subjective states of mind for which Chemring acted, as to the preliminary persuasiveness of which I have already commented.

53    Regarding the AWU’s s 50 case, I accept that there is a prima facie case that, by its introduction of the New Work Instruction, Chemring contravened s 50 of the FW Act. Again, Chemring does not suggest that there is not, albeit it maintains that what case there is is weak.

54    Again, I agree.

55    Central to this claim is that the New Work Instruction qualifies as what clause 3.1 of the EA describes as “…a policy that relates to the relationship between [Chemring] and [its] employees”. If it does, then the provisions of clause 7.1 apply in respect of its implementation (or, more accurately, the amendment of the instruction that it replaced).

56    In my view—which, again, I can form only on an interlocutory basis upon the strength of the evidence before me—the New Work Instruction is unlikely to qualify in the requisite way (although I accept, as I must, that it could). Clause 3.1 of the EA draws a distinction between “policies” and “procedures”. It says that “policies” form part of employees’ conditions of employment. Although the clause is not the easiest to construe, it is, in my view, unlikely (however possible) that it encompasses changes to the way that employees are instructed to perform their work. That question will need to be the subject of further evidence.

Balance of convenience

57    The AWU contends that the balance of convenience favours a grant of interlocutory injunctive relief because, to summarise:

(1)    Mr Smith has financial commitments, the satisfaction of which his dismissal might jeopardise;

(2)    Mr Smith and his wife need to make some repairs to their house, which might be postponed if he loses his job;

(3)    Mr Smith’s suspension and potential dismissal have visited upon him adverse health and relationship consequences;

(4)    Mr Smith’s absence from the Lara facility has had an adverse impact upon the AWU’s bargaining campaign.

58    Chemring says that there is prejudice to it in the Court ordering that Mr Smith be retained at and/or returned to the Lara facility. Doing so, it is said, will serve to undermine its legitimate interest in maintaining strict safety protocols at its site, and will subject Mr Smith and those that have to work with him to the risk of injury.

59    Dealing first with Chemring’s contentions: I do not accept that there is any evidential basis upon which I could find that Mr Smith’s return to the Lara site would expose him or anybody else to the risk of injury. It might; it might not. It is not a matter upon which the evidence permits expression of the conclusion urged. Whether or not Chemring’s complaint about what occurred on 11 April 2019 properly amounts to a serious safety concern is a live issue and the subject of conflicting submissions that cannot (and should not) be resolved at this juncture.

60    Chemring does, however, have a legitimate interest in propagating and enforcing safety standards at its facility. An order requiring it to bring Mr Smith back to work (or, otherwise, not to proceed with whatever disciplinary action it deems appropriate) in circumstances where he stands accused of breaching those standards might serve to undermine its position in that respect. The AWU does not dispute that; but it describes the prejudice (if any) as “slight”. With respect, I consider that a fair assessment. I do not consider that this factor weighs strongly upon where the balance of convenience lies; but I accept that it weighs at least to some degree.

61    As to the factors that are said to tip the balance of convenience in favour of a grant of interlocutory injunctive relief, a number of observations arise. First, it is not apparent on the evidence that Mr Smith’s financial commitments are such that a failure to grant injunctive relief now might imperil him or his family in any substantial way; and, in particular, in any way that an order for reinstatement and/or damages (or the latter’s statutory equivalent, compensation) could not ameliorate should the case succeed at trial. I readily infer (and Chemring properly concedes) that, if his employment is terminated, Mr Smith and his family will suffer financially, as many in that situation would. But to what extent remains largely unexplored by the evidence. I am unwilling, if not unable, to infer some financial (or financially-related) consequence sufficiently significant to warrant a conclusion that the balance of convenience favours an exercise of the Court’s discretion to grant interlocutory injunctive relief.

62    The evidence of the impact that Mr Smith’s suspension and potential dismissal have had upon his health and marital relations is thin. Again, I readily infer that Mr Smith has not enjoyed the process to which he has been subjected. I accept, as the AWU urges, that consequences such as those complained of—and, more broadly, the denial of the enjoyment of work that circumstances such as the present might entail—should inform where it is that the balance of convenience lies: Blackadder v Ramsey (2005) 221 CLR 539, 549 (Kirby J), 566-567 (Callinan and Heydon JJ); AMWU & anor v McCain Foods (Aust) Pty Ltd [2012] FCA 1126, [47]-[48] (Bromberg J). However, I do not accept that Mr Smith’s anxieties tip the balance of convenience in favour of a grant of interlocutory injunctive relief. I am fortified in that view by the fact that the present proceeding was instituted more than a month after Mr Smith was first stood down (the point from which those anxieties almost certainly first arose, albeit only then in context of suspension rather than potential dismissal).

63    The impact that Mr Smith’s absence from work has visited (or threatens to visit) upon the AWU’s bargaining campaign (and its representation of members at the Lara facility generally) is properly a factor of which account should be taken in assessing where the balance of convenience in this case lies: AMWU & anor v McCain Foods (Aust) Pty Ltd [2012] FCA 1126, [50] (Bromberg J). Similarly, the Court can (and I do) take account of the potential impact of his absence on other employees (including prospective employees)—who, so the AWU contends, stand to be deprived thereby of a favourable, or more favourable, bargaining outcome: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 41-42 (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).

64    I do not accept, in either case, that Mr Smith’s absence from work threatens consequences sufficient to tip the balance of convenience in favour of a grant of interlocutory injunctive relief. Mr Smith had been absent from the site for over a month before the present application was filed. Had his absence been felt as keenly or as seriously as is now suggested, one might have expected greater haste.

65    Further, it is not clear what it is that the AWU says has been made more difficult by his absence. Ms Harrington deposes to the effect that Mr Smith’s absence has made it “…extremely difficult [for her] to organise in relation to the EA negotiations” and that she relies upon Mr Smith to “communicate with the broader workforce”. What, precisely, is meant by the former is unclear, and it is plainly not the case that Mr Smith was or is the only conduit through which the AWU can canvass or inform its members. There is no obvious reason why Mr Smith could not have continued (if he has not) to assist the AWU with its bargaining initiatives throughout the period of his suspension (save, obviously, for assistance that required his presence at work, whatever that might entail).

66    The fact that Chemring has made moves to communicate directly with its workforce about the terms of a replacement enterprise agreement is not, in my view, a consideration material to an assessment of where the balance of convenience lies. The AWU suggests that Mr Smith’s absence from the site leaves it and its members exposed to the possibility that an inferior bargain (that is, one that is inferior to what the AWU believes can be achieved) will be struck: a possibility that “may never be able to be undone”. Whether that is so or not is entirely dependent upon Chemring’s employees. If Chemring puts to them a deal that they do not wish to accept, they can (and, presumably, will) reject it. There is evidence that the AWU, either through its members or through Chemring directly, has, despite Mr Smith’s absence from work, been kept abreast of Chemring’s most recent strategy of direct engagement with its employees. The prospect that a proposal will be put to employees without the AWU’s knowledge seems remote, to say the least. For reasons already summarised, the AWU is at liberty—and, despite, Mr Smith’s absence, has avenues reasonably available to it—to communicate any opposition (or otherwise) that it feels is in its members’ bests interests.

67    I accept that there will be at least some downside to the AWU and its members of Mr Smith’s absence from the Lara facility—and that that downside will be amplified to a degree if his employment is terminated—but I do not accept that that downside is sufficient to tip the balance of convenience in favour of a grant of interlocutory injunctive relief.

68    The AWU contends that the balance of convenience is “all one way”. With respect, it is not. For the reasons outlined, I accept that there are factors that weigh in favour of a grant of injunctive relief. But I am not satisfied that any of them weighs strongly; and, collectively, they are not the only factors that inform where it is that the balance of convenience lies.

Conclusion

69    Given the weak prima facie case that its evidence presents and what I would (on the strength of the observations above) describe as the relatively fine balance of convenience, I am not satisfied that the Court’s discretion to grant interlocutory injunctive relief should, in this case, be exercised.

70    The interlocutory application is dismissed. No party has made any submission as to costs and, in my view, that is appropriate: FW Act, s 570. There shall be no order as to costs. Further orders for the programming of the matter to trial will be made upon consultation with the parties.

Associate:

Dated:    24 May 2019