FEDERAL COURT OF AUSTRALIA

Trego v Wesbeam Pty Ltd [2019] FCA 1030

ORDERS

UPON:

A.    The first respondent by its counsel undertaking until the hearing and determination of the application or further order to not induce any of its employees engaged at the factory located in Dandenong, Victoria, including by offering a promotion, to cease to be members of the second applicant; and

B.    The second applicant by its counsel undertaking, on behalf of both applicants, to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and to pay the compensation referred to the person there referred to.

THE COURT ORDERS THAT:

1.    Until the final hearing and determination of this application, or further order, the termination of the first applicant’s employment with the first respondent on 13 June 2019 is to be treated as invalid and of no force or effect, and the first respondent is to reinstate the first applicant in the employment he had before that date.

2.    The proceeding be referred to the National Operations Registry for allocation to a docket judge, for the purposes of an expedited hearing.

3.    There be no orders as to the costs of the interlocutory application.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This interlocutory application was heard by me on an urgent basis on 28 June 2019 in my capacity as duty judge. The proceeding was commenced by way of an originating application filed on 26 June 2019.

2    The applicants’ originating application seeks final relief including declarations, compensation and pecuniary penalties for alleged breaches by the respondents of ss 340, 343, 346, 348 and 350 of the Fair Work Act 2009 (Cth). Relevantly to this interlocutory application, one of the orders sought in the originating application is an order pursuant to s 545 of the FW Act requiring the first respondent to reinstate the first applicant to his former employment.

3    The following interlocutory relief is sought in the originating application:

1.    Until the hearing and determination of the application or further order:

(a)    the First Respondent reinstate the First Applicant to his former employment with it on the same terms and conditions which applied immediately prior to 11 June 2019;

(b)    the First Respondent be restrained, by itself, its servants or agents from inducing any of its employees engaged at the factory located in Dandenong, Victoria, including by offering a promotion, to resign from the Second Applicant; and

(c)    such further or other orders as the Court considers appropriate.

4    In the applicants’ outline of submissions filed in advance of the interlocutory hearing on 28 June 2019, the applicants state they seek an interlocutory injunction against the first respondent in relation to:

(a)    the contravention of s.340 involving the dismissal of Trego;

(b)    the contravention of s.343;

(c)    the contravention of s.346 involving the dismissal of Trego; and

(d)    the contravention of s.348;

pending the determination of the application.

(Footnotes omitted.)

5    For the reasons that follow, I find it is appropriate to grant the interlocutory relief sought in favour of the first applicant. Relief in favour of the second applicant is not necessary, given the undertaking proffered to the Court on behalf of the first respondent.

the evidence before the court

6    At the interlocutory hearing, the applicants read and relied on the following affidavits:

(a)    affidavit of John Trego affirmed on 26 June 2019;

(b)    affidavit of Steven Abboushi sworn on 26 June 2019; and

(c)    second affidavit of Bronson Flanagan affirmed on 28 June 2019.

7    The respondents read and relied on the following affidavits:

(a)    affidavit of Mark Desmond Blick affirmed on 28 June 2019;

(b)    affidavit of Sue Krouzecky sworn on 28 June 2019; and

(c)    affidavit of Peter James Board affirmed on 28 June 2019.

8    Some of the affidavit material filed on behalf of the respondents came in shortly before and during the oral hearing. That is no criticism of the respondents, who responded as promptly as they could to the application. All the parties’ material has now been considered.

relevant facts

9    The first applicant, Mr John Trego, is a 41 year old man. He worked in the mining industry in Western Australia for about 18 years, before relocating to Melbourne in November 2018 following the breakdown of his marriage around two years prior. He has four children whom he supports financially.

10    Mr Trego was employed by the first respondent, Wesbeam Pty Ltd, on or about 29 October 2018. He worked as a factory hand at Wesbeam’s factory in Dandenong, Victoria. On 17 April 2019, he became a member and delegate of the second applicant, which I refer to in these reasons as the CFMMEU or the union. The circumstances in which he came to be a member of the union, and his activities as a union delegate, are central to the applicants’ allegations. Mr Trego was dismissed from his employment with Wesbeam on 13 June 2019, which led to the initiation of this proceeding.

11    As set out in the applicants’ outline of submissions, by reference to evidence from Mr Flanagan’s second affidavit, Wesbeam’s Dandenong factory prepares and packages timber for sale to retailers such as Bunnings. It is a relatively small workplace with approximately 23 employees in total. Mr Trego deposes that approximately 15 employees work on the “shop floor” (where he worked prior to his dismissal).

12    As counsel for the applicants contended at the hearing and in written submissions, at the time Mr Trego was employed, it was fair to describe Wesbeam’s Dandenong factory as a “non-unionised” workplace. Counsel contended, and for the purposes of this interlocutory application I accept, that at the time of Mr Trego’s employment there was no enterprise agreement applicable to the factory’s shop floor employees; rather, their employment conditions were governed by the Timber Industries Award 2010. On the evidence, that remains the situation.

13    Relevantly to the resolution of the interlocutory application, Mr Trego deposes to the following matters concerning the first four months of his employment at the Wesbeam factory:

(a)    he took on a “leading hand” role shortly after commencing his employment, at the request of Te Rako Mahuta (Mr Rako), the factory Production Manager, however this role was “never formalised” and he was not paid by Wesbeam as a leading hand;

(b)    he ordinarily worked the hours of 6am to 2pm on a Monday to Friday, as both a factory hand and as the person who “ran the factory floor on the day shift”;

(c)    he was initially employed on a permanent full-time basis at an hourly wage of $23.70, with a six month probationary period;

(d)    he socialised regularly with his Wesbeam colleagues, both at and outside work;

(e)    he worked on average 80 to 100 hours per fortnight, and regularly worked past his rostered finish time of 2pm, for which he was paid overtime; and

(f)    he was “always the first to be asked” by Mr Rako or Mark Blick (the factory Operations Manager and third respondent) if he wanted to work overtime, and became reliant on regularly receiving that amount of income (which was “about $1,800 per fortnight”).

14    At paragraphs [18]-[28] of his affidavit, Mr Trego details the circumstances leading to him becoming a member and employee representative with the CFMMEU.

15    Mr Trego deposes that after being informed by Sue Krouzecky (Wesbeam’s Human Resources Manager and the second respondent) at a meeting on or about 25 March 2019 that Wesbeam wanted an enterprise agreement to cover the shop floor employees at the Dandenong factory, the employees unanimously decided to seek assistance from the CFMMEU. Mr Trego also deposes that at that meeting, the employees were told by Ms Krouzecky that they could “bring in the union help if [they] wanted”.

16    Following that meeting, Mr Trego was elected as the union’s employee representative by his colleagues. Mr Trego deposes that whilst he had been a union member back in Western Australia, he was not an “active unionist”, and that he had had no prior involvement in bargaining for enterprise agreements or other industrial activity.

17    Mr Trego deposes that on or about 17 April 2019, Bronson Flanagan, a CFMMEU employee, visited the Dandenong factory and met with Mr Blick. After that meeting, Mr Trego claims that Mr Rako came onto the shop floor and told the employees they had to turn their radios off because Mr Blick “was pissed off that the union are here”.

18    Mr Trego deposes that at a meeting later that day in the factory carpark with Mr Flanagan, all factory employees present at that meeting, including Mr Trego, became members of the union. Mr Trego was designated the union delegate.

19    In their supporting affidavits, Mr Flanagan and Mr Abboushi depose to the entitlement of the CFMMEU’s “Manufacturing Division” to represent the industrial interests of the shop floor employees at Wesbeam’s Dandenong factory, and to the union’s commitment to representing the workers there, having been asked to do so and having had a number of factory workers join the union.

Mr Trego’s allegations

20    In his supporting affidavit Mr Trego makes a number of allegations against Wesbeam, Ms Krouzecky and Mr Blick. These allegations form the factual circumstances underlying Wesbeam’s purported contraventions of ss 340, 343, 346, 348 and 350 of the FW Act, as set out in paragraphs 1 to 10 of the applicants’ originating application. It is alleged that Ms Krouzecky and Mr Blick were “involved” in those contraventions within the meaning of s 550 of the FW Act.

21    Mr Trego deposes that after becoming a member of the union, and from on or around 20 April 2019, he was “never again offered overtime by Wesbeam”, despite him observing other day shift employees on the shop floor being asked to stay back. He alleges that as a result, he came to lose around $700 of income per fortnight, which made it difficult for him to make child support payments and placed further strain on his relationship with his ex-wife.

22    Mr Trego deposes that when he asked Mr Rako why he was no longer being offered overtime work, Mr Rako told him that Mr Blick “want[ed] [him] gone no matter if they have to pay [him] out” because he had “brought the union in”. Mr Trego claims that from late April 2019 he had regular meetings with Mr Blick in which he felt “harassed” about his union involvement. Mr Trego alleges Mr Blick was “hostile…towards [him] and the union” and that he was surprised by this behaviour, given that Ms Krouzecky had told the employees at their meeting in March 2019 that they could involve the union in the enterprise agreement negotiations.

23    At [46]-[92] of his affidavit, Mr Trego sets out further allegations of events and circumstances which led to his dismissal from Wesbeam. Relevantly to the interlocutory application they include:

(a)    the circumstances surrounding his first employment review with Mr Blick and Ms Krouzecky on 3 May 2019, at which he was warned about a “problem with [his] communication and [his] attitude” and was informed that his probation was being extended and he was being made subject to monthly reviews to “work on [his] communication”. Prior to this meeting, it was announced that a colleague of Mr Trego’s from the “forklift area” of the factory had been made leading hand for the factory floor on the day shift, despite Mr Trego making inquiries with both Mr Blick and Ms Krouzecky about his eligibility for the position, and despite Mr Trego’s view that he had been “in charge” of the factory floor informally since shortly after commencing his employment;

(b)    the circumstances surrounding his second employment review with Mr Blick on 6 June 2019 (at which Mr Trego requested Mr Rako to be present), at which Mr Blick allegedly told Mr Trego that he had been told to give him a “verbal first and final warning because [he] talk[s] too much about the union in work hours”. Mr Blick also referred to an alleged incident with a colleague of Mr Trego’s named Tim who Mr Trego had purportedly pressured to join the union at his first shift at the factory. Mr Trego admits he had discussed the union with Tim on his first shift but denies he “bullied” him about joining the union, and deposes that the following morning, Tim denied to Mr Trego that he found his behaviour threatening. At the conclusion of the meeting, Mr Trego alleges he asked Mr Blick for copies of his performance report, and the warning;

(c)    Mr Trego deposes that the day after the meeting, on 7 June 2019, Mr Blick was on leave. Mr Trego deposes that at around 8am, he had an interaction with a Wesbeam office clerk named Carly Duggan, and that they talked about his review. Mr Trego claims he told Ms Duggan about feeling like he was “getting punished”, that he couldn’t speak about the union at work anymore, and that he got a “third party” to sort the issue out (referring to Mr Flanagan of the CFMMEU, whom Mr Trego had spoken to about the review);

(d)    following this conversation with Ms Duggan, Mr Trego deposes he was called into a conference call with Mr Rako, Ms Krouzecky and another HR representative, at which he was informed Ms Duggan had alleged he’d threatened her, and that he was being stood down with pay pending an investigation. It was subsequently stated by Ms Krouzecky at Mr Trego’s disciplinary meeting on 13 June that there was CCTV footage of this incident. No CCTV footage has been produced by the respondents on this application. In his second affidavit, Mr Flanagan deposes at [61]-[66] of unsuccessful attempts made by him and the CFMMEU’s lawyers to obtain a copy of that video footage from Ms Krouzecky following Mr Trego’s dismissal;

(e)    Mr Trego claims he was given until the following Tuesday, 11 June, to make a responding statement to the allegations said to have been made by Ms Duggan. Given what he was facing and in my opinion understandably, Mr Trego deposes he instructed a lawyer employed by the CFMMEU to write to Wesbeam regarding his stand down, requesting Wesbeam to put their allegations in writing;

(f)    Mr Trego claims he did not provide Wesbeam with a written statement on 11 June because he had not yet received allegations from Wesbeam in writing, and as such did not know how to respond. As I note above, he had also been advised by his lawyer not to respond – again in my opinion an entirely understandable approach, especially recalling that he was at this stage subject to a “first and final warning” about the continuation of his employment;

(g)    on Thursday 13 June, Mr Trego deposes he attended a disciplinary meeting at the factory accompanied by Mr Flanagan and Mr Abboushi. The meeting was also attended by Ms Krouzecky and Wesbeam’s Victorian State Manager, Peter Board. Mr Trego deposes that at this meeting, Ms Krouzecky informed him that his employment was being terminated, due to him having “pushed” Ms Duggan and having engaged in other threatening behaviour towards her after being stood down. Further evidence about what allegedly occurred at this meeting is contained in Messrs Flanagan and Abboushi’s affidavits; and

(h)    Mr Trego deposes that on 18 June 2019 he received a termination letter from Wesbeam.

24    The allegations relied upon in support of the applicants’ claim for interlocutory relief are set out at [47] below.

Impact of the dismissal on Mr Trego

25    In support of his application for interlocutory relief, Mr Trego has deposed to the impact of the dismissal on him and his family. He deposes that he remains without work and has been unable to afford to pay his usual $700 fortnightly child support payments. He is concerned that if he is unable to find work, he will be unable to meet basic living expenses such as rent and groceries. He deposes to having recently applied for Centrelink.

26    Mr Trego also deposes in his affidavit at [104]-[105] to the loss of social connections caused by his dismissal, and his desire to return to work at the factory:

I don't know that many people in Melbourne, and I miss the social connections I had at work as it was my whole social circle. I am very lonely and isolated at the moment. I am away from my family which is hard enough and now I don't get to see my mates at the factory.

Despite everything that has happened I think I can go back and work for Wesbeam. I don’t hold a grudge against anyone. I am well liked and respected on the factory floor, and I still have lots of positive relationships there, including with Rako, my direct supervisor.

27    Counsel for the applicants emphasised the matters outlined in the preceding paragraphs in support of the “balance of convenience” weighing in favour of the grant of an interlocutory injunction, which I consider below.

The CFMMEU’s allegations

28    The second order contained in the applicants’ claim for interlocutory relief pertains more to the CFMMEU, and seeks to restrain Wesbeam, its servants or agents from inducing any of its employees at the Dandenong factory from resigning from the CFMMEU, including by offering a promotion.

29    The supporting affidavits of Mr Flanagan, Mr Abboushi and also Mr Trego make references to alleged incidents involving the resignation of Wesbeam factory employees from the CFMMEU, including in circumstances where it is suggested employees were pressured to resign from the union. Mr Flanagan’s second affidavit clarifies that whilst formal resignations from these factory employees are yet to be received by the union, he anticipates receiving those formal resignations and is yet to find an employee who is willing to become the new union delegate at the factory. This is a key foundation of the coercion allegation.

30    At [70]-[72] of his affidavit Mr Flanagan states:

The Second Applicant respectfully requests that its application for an interlocutory injunction be listed as a matter of urgency.

At present the Second Applicant does not have a representative in the workplace, is unable to recruit a new representative in the workplace and is progressively loosing its members.

The current state of affairs should not remain in place until trial as the prejudice being caused to the Second Applicant and its members at the factory is increasing as more time passes.

The undertaking as to damages

31    Initially, only the second applicant gave the usual undertaking as to damages. During and after the hearing, the applicants clarified that the second applicant gave the usual undertaking both on its own behalf and on behalf of the first applicant.

The respondents’ response to the application and the evidence

32    The respondents took a responsible position on the application, and did their best to respond in a timely way to the evidence adduced by the applicants.

33    Following the hearing, the respondents confirmed that the first respondent would give an undertaking that:

… until the hearing and determination of the application or further order to not induce any of its employees engaged at the factory located in Dandenong, Victoria, including by offering a promotion, to cease to be members of the second applicant.

34    This undertaking addresses the interlocutory order the second applicant sought, and removes the need for any relief of the kind sought by the second applicant.

35    The respondents also conceded there was a serious question to be tried in this proceeding. Counsel submitted the strength of the serious question was less than the applicants submitted, and this was the focus of his oral submissions on this aspect of the application.

36    At the hearing I asked for the parties’ views on whether they would be prepared to accept interim relief in the form recently ordered by Robertson J in Australian Rail, Tram and Bus Industry Union, NSW Branch v Metro Trains Sydney Pty Ltd [2019] FCA 546:

On the respondent giving an undertaking to pay the second applicant the wages that he would have received pending a trial in July 2019, the application for an interim injunction is refused.

37    Counsel for the respondents quite properly sought instructions on this during the hearing and secured instructions to agree to such an arrangement. Due to no fault of counsel, but my own fault in not making more precise inquiries of counsel, it was not clarified whether this would be by way of an undertaking, or order. As it now stands, given what I say below, that issue need not be pursued.

38    The applicants submitted an outcome of this kind was insufficient.

39    The respondents’ submissions also focussed on the proposition that the balance of convenience was not in favour of granting the relief sought, especially in relation to the reinstatement of Mr Trego and his return to the workplace. They relied on evidence about the complaint they contend Ms Duggan had made, and contended her sense of safety was at risk if Mr Trego returned to the workplace. They also submitted that workers in Wesbeam’s workplace had “moved on” since Mr Trego had left.

40    Counsel also emphasised the premature nature of the respondents’ evidence, due to the short notice at which the matter was listed for interlocutory hearing, and that as such the respondents have not yet had an opportunity to respond to each of the allegations made by the applicants. Nevertheless, the interlocutory application falls to be determined on the material the respondents have filed with the Court, and I have now had the benefit of reading the evidence adduced on behalf of the respondents by Mr Blick, Ms Krouzecky and Mr Board pertaining to some of the circumstances concerning Mr Trego’s dismissal.

key legislative provisions

41    Section 340 of the FW Act provides:

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).

42    Section 343 of the FW Act provides:

343 Coercion

(1)    A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a)    exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b)    exercise, or propose to exercise, a workplace right in a particular way.

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

(2)    Subsection (1) does not apply to protected industrial action.

43    Section 346 of the FW Act provides:

346 Protection

A person must not take adverse action against another person because the other person:

(a)    is or is not, or was or was not, an officer or member of an industrial association; or

(b)    engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

(c)    does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

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

44    Section 348 of the FW Act provides:

348 Coercion

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

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

45    Section 350 of the FW Act provides:

350 Inducements—membership action

(1)    An employer must not induce an employee to take, or propose to take, membership action.

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

(2)    A person who has entered into a contract for services with an independent contractor must not induce the independent contractor to take, or propose to take, membership action.

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

(3)    A person takes membership action if the person becomes, does not become, remains or ceases to be, an officer or member of an industrial association.

46    Section 545 of the FW Act relevantly provides:

545 Orders that can be made by particular courts

Federal Court and Federal Circuit Court

(1)    The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

Note 1:    For the court’s power to make pecuniary penalty orders, see section 546.

Note 2:    For limitations on orders in relation to costs, see section 570. Authorised Version C2018C00512 registered 21/12/2018

Note 3:    The Federal Court and the Federal Circuit Court may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).

Note 4:    There are limitations on orders that can be made in relation to contraventions of subsection 65(5), 76(4), 463(1) or 463(2) (which deal with reasonable business grounds and protected action ballot orders) (see subsections 44(2), 463(3) and 745(2)).

(2)    Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:

(a)    an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b)    an order awarding compensation for loss that a person has suffered because of the contravention;

(c)    an order for reinstatement of a person.

…

When orders may be made

(4)    A court may make an order under this section:

(a)    on its own initiative, during proceedings before the court; or

(b)    on application.

resolution

Prima facie case

47    The applicants submit:

52.    In support of the application for interlocutry relief the Applicants rely on the following claims:

(a)    that Wesbeam has contravened the protection contained in sections 340 and 346 of the FW Act by dismissing Trego for a prohibited reason or for reasons that included a prohibited reason; and

(b)    that by dismissing Trego the First Respondent has engaged in conduct in contravention of sections 343 and 348 with the intent to coerce the employees to cease exercising their workplace rights in relation to enterprise bargaining, to cease being members of the union and to cease otherwise engaging in industrial activity.

53.    The Applicants submit that the prohibited reasons for the dismissal were:

(a)    that Trego had exercised his right to make complaints or inquiries within the meaning of s.341(1)(c) by complaining that he had not been formally appointed to the position of leading hand and by raising safety concerns;

(b)    that Trego has exercised his right to participate in a process or proceeding under a workplace law within the meaning of s.341(1)(b) by appointing the union as his bargaining representative, seeking to participate in negotiations for an enterprise agreement and becoming and acting in his capacity as a HSR;

(c)    that Trego had engaged in industrial activity within the meaning of s.347(a) by becoming a member of the union and becoming a delegate of the union; and

(d)    that Trego had engaged in industrial activity within the meaning of s.347(b) by acting as the union’s representative in the factory.

…

58.    In summary the Applicants contend that there is a compelling inference to be drawn that Trego:

(a)    has been dismissed for prohibited reasons in contravention of sections 343 and 346 of the FW Act; and

(b)    by dismissing Trego the First Respondent has engaged in conduct in contravention of sections 343 and 348 with the intent to coerce the employees to cease exercising their workplace rights in relation to enterprise bargaining, to cease being members of the union and to cease otherwise engaging in industrial activity.

48    For the purposes of the interlocutory application, I accept the applicants have established a prima facie case on those contentions.

49    I emphasise these opinions are formed at a prima facie level, without the evidence having been tested, and with the evidence being no doubt substantially less than the parties would adduce at trial. However, it is necessary to explain why I consider the prima facie case is strong, because that is a factor which has affected my willingness to grant some of the relief sought by the applicants, in circumstances where reinstatement in particular is a remedy that has been approached by Courts cautiously in the past. The following aspects of the evidence have informed my conclusion there is a strong prima facie case as described by the applicants.

50    Mr Flanagan’s evidence indicates the kinds of changes the union, with Mr Trego, sought to bring into the Wesbeam workplace through the proposed enterprise agreement:

Krouzecky showed me the Wesbeam [enterprise] agreement from their Queensland site. I told her we wouldn’t agree to an agreement in those terms. I told her that in the Queensland agreement, the heat policy only applied in conditions of 47 degrees or over and that the wage increases were only 1.5% for three years. In told her wanted to bargain for better and fairer conditions for the members than that and so did Trego.

51    There is nothing objectively unreasonable abut a union bargaining for these kinds of terms. I see nothing in the evidence to suggest that Mr Trego, in his role as a union delegate, nor Mr Flanagan in his role as the CFMMEU official liaising with Wesbeam, the union members on site and Mr Trego, acted in any way that could not be reasonably expected of a union delegate and a union official. I accept there is some evidence suggesting Mr Flanagan was rude and confrontational, and that may be proven to be the case at trial. However, the substance of the union’s engagement on the site, and Mr Trego’s role in that, seems on the evidence to be nothing out of the ordinary of what would be expected of a union in such circumstances.

52    Despite this, Mr Blick’s own affidavit evidence discloses a dislike for, and hostility towards, the union and the bargaining power it brought to Wesbeam workers. The changes in the first applicant’s attitude to his work which Mr Blick describes are in my opinion suggestive of disapproval of Mr Trego’s focus on union protections, and the support unions might give to workers. Mr Blick deposes to personally not being in favour of an enterprise agreement for this workplace, saying the “logistics, time and expense” involved in the bargaining process are not justified in a small workplace like Wesbeam’s Dandenong factory. The negativity towards what unions, including the second applicant, represent, and what they do – in ways which may of course be inconvenient or expensive for employers – come through strongly in Mr Blick’s affidavit. The impression I have formed on the present evidence is strengthened by evidence from Mr Blick, in two respects. First, his own evidence that “I have noticed the morale, particularly amongst the supervisors who report to me, is so much more at ease”. And second, his evidence, by reference to a conversation he had with Mr Rako, that now Mr Trego and his insistence on union involvement is not at the workplace, “morale has picked up and the attitude of the guys is more positive”. One inference is that “morale” and “positive” and “at ease” in this context mean no opposition to the way the employer insists the workplace runs and the conditions its employees should experience. While it may be that the attitude of the CFMMEU, and Mr Flanagan, contributed to an increase in tension and confrontation which was unnecessary, for the purposes of the present application, the clear impression I have of Mr Blick’s evidence is a sustained and wholesale objection to a union being involved in a workplace he managed.

53    In that context, the evidence before the Court reveals a distinct coincidence between the commencement of Mr Trego’s union involvement (and the consequent union presence within the Wesbeam factory), and the events which ultimately led to Mr Trego’s dismissal on 13 June, and the dismissal itself. That coincidence appears, on the current evidence, too acute to be accidental. One example is the competing evidence about why Mr Trego lost his overtime from late April 2019. His evidence – not contradicted – was that prior to this time, he worked a considerable amount of overtime, and it was always on offer. Almost immediately after he joined the union and became its delegate on the site, Mr Trego was no longer offered regular overtime. Mr Blick deposes that due to “some slowing down in terms of production” at or around 20 April 2019, all employees’ overtime hours were reduced. There is no evidence about when that situation started (in terms of precise dates), for how long it lasted, or when or whether it continues to be the case that all of Mr Trego’s former co-workers are working reduced overtime hours. In my opinion, a broader, industry-related “slow down” does not explain the suddenness of the cessation of overtime as recounted by Mr Trego, which was not disputed by the respondents.

54    The circumstances of Mr Trego’s performance reviews and his eventual dismissal were also probative, at a prima facie level, of the real reasons for his treatment, including his dismissal, being his “industrial activity”. Further, the constant theme in the respondents’ affidavit material that Mr Trego failed to follow a “chain of command” within Wesbeam is capable of demonstrating that Wesbeam simply wished to keep the union out of its workplace, and prevent any circumstances arising where the union might be able to address health and safety concerns at the workplace, or bargain for better employment and workplace conditions.

55    Overall, the impression I have gained from the respondents’ present affidavits is that there was a hasty and somewhat peremptory performance management process, which appeared to have as its main aim that Mr Trego cease involving the union in workplace issues, including health and safety issues. I note in respect of the latter Mr Flanagan’s evidence that Mr Trego was elected as the union’s workplace Health and Safety Representative on 6 May 2019. Rather than any good faith approach to constructively resolving how Mr Trego might address his employer’s concerns about him contacting the union first, the present evidence suggests there was a decision to get rid of the problem by dismissing Mr Trego and thus removing the union’s influence on the worksite.

56    The respondents relied on the situation they submitted existed concerning Ms Duggan’s concerns about Mr Trego. There is no evidence from Ms Duggan herself, although an email from her, and a handwritten note, are exhibited to Ms Krouzecky’s affidavit. In other evidence, including evidence about what was put to Mr Trego as part of the dismissal process, it is suggested there was CCTV footage to back up Wesbeam’s assertions about how Mr Trego had behaved towards Ms Duggan. This behaviour was given as a reason for Mr Trego’s dismissal, namely that Mr Trego had engaged in “[m]isconduct causing serious and imminent risk to the health and safety of employees”. Counsel for the respondent confirmed in oral submissions this was a reference to allegations about how Mr Trego had behaved towards Ms Duggan herself (not Mr Blick). Yet the CCTV footage, which might have been the most objectively persuasive evidence, was not produced by the respondents. In any event, even if one takes the descriptions in Ms Duggan’s email and note, which is the highest the evidence reaches for the respondents, the description in the dismissal letter seems very difficult to justify, and therefore very difficult to accept, at this stage of assessing the strength of the prima facie case, as a reflection of the true reason for Mr Trego’s dismissal.

57    I note also, in the context of another of the express reasons for Mr Trego’s summary dismissal (being that he discussed his performance review with another employee, namely Ms Duggan), Wesbeam appears to have no difficulty relying on what its other employees (such as Ms Duggan) discuss amongst themselves, or what Mr Trego may have discussed with those employees, when Wesbeam wishes to rely upon those discussions. The asserted confidentiality seems entirely one way. The notion that somehow Mr Trego breached some obligation of confidentiality in his discussion with Ms Duggan about his own performance review, and that this was an adequate reason (or more importantly, was a true reason) for his dismissal is difficult to accept on the present evidence.

58    Finally, the other reason given for Mr Trego’s dismissal, being “[h]indering the HR Investigation Process by refusing to supply a statement to a grievance that was lodged”, is also difficult to accept as a reflection of the true reason for his dismissal, on the present evidence before the Court. As I have noted earlier, I consider the position taken by Mr Trego in requiring written allegations about this alleged interaction with Ms Duggan (which was asserted to be so serious as to justify consideration of his dismissal), was a perfectly reasonable and appropriate approach for an employee in his position to take. It was also perfectly reasonable for him to consult his union and for the union to secure him some legal advice. Wesbeam, on the evidence, totally failed to respect this process and to recognise his rights in this situation. To describe Mr Trego’s conduct as “hindering” an investigation reveals that lack of respect, and perhaps a complete misunderstanding of what an appropriate and lawful investigative process involves. More materially to the present application, it casts doubt on this as a true reason for his dismissal. Especially so when Wesbeam clearly went on to and made up its mind on Ms Duggan’s allegations, because it used her allegations as the fourth reason for Mr Trego’s dismissal, and in my opinion escalated their seriousness to a level that not even her own words justified.

59    The applicants’ prima facie case is in my opinion of considerable strength as against the first respondent, both as to contraventions based on adverse action against Mr Trego by reason of his industrial activity and contraventions of the coercion provisions of the FW Act.

60    For the purposes of deciding this application, I have not relied on Mr Trego’s alleged ineligibility for the role of leading hand on the factory floor. It was common ground Mr Trego did not hold a forklift licence. Mr Blick deposed this was necessary for a leading hand. However, on the other hand, Mr Trego deposed that the worker who was appointed to the position of leading hand had “told [Mr Trego] directly that he had got the position and the wage increase in a meeting with Sue [Krouzecky] and Mark [Blick] on the basis that he resigned from the union”. There are competing explanations on this issue and this matter should be left for trial. Nor do I rely upon the allegations concerning whether Wesbeam’s employees had their ability to listen to the radio during working hours removed by reason of the involvement of the CFMMEU in the workplace.

61    Further, on this application I make no findings about the existence or strength of the applicants’ prima facie case against the second and third respondents. It is not necessary to do so. They are individuals, who are now burdened with serious allegations being made against them, and consideration of their role, if any, in the alleged contraventions should await trial.

The relevance of the reverse onus

62    At the hearing the parties both referred to recent cases in which this Court has dealt with applications for interim relief under the FW Act. In particular, the parties referred to the recent judgments of Robertson J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd [2019] FCA 561 and Snaden J in Australian Workers’ Union v Chemring Australia Pty Ltd [2019] FCA 750. In both of those cases, their Honours considered whether the reverse onus contained in s 361 of the FW Act is relevant to assessing whether there is a serious question to be tried.

63    In Fredon at [46], Justice Robertson accepted the submission that the reverse onus is relevant to that assessment (consistent with the view his Honour expressed previously in Metro Trains Sydney at [46]). In Chemring, Snaden J expressed reservations about the relevance of the reverse onus to that assessment, noting the express wording of s 361(2) suggests the reverse onus is irrelevant in applications seeking an interim injunction. However, it was unnecessary for his Honour to decide that point in the case before him, and as such his Honour proceeded on the basis that the existence of the reverse onus was something to which he could properly have regard in assessing whether a prima facie case existed (see [49] of his Honour’s reasons).

64    On this application, I have not taken the reverse onus into account in any way. For the purposes of this application, and accepting the evidence has not been tested, and is not complete, I am nevertheless comfortably satisfied on the basis of the evidence before the Court, that there is a serious question to be tried whether Wesbeam has contravened the FW Act by taking adverse action against Mr Trego, because he became a CFMMEU member and representative in its workplace, because he sought to involve the union in enterprise agreement negotiations and the conditions in the workplace generally (including in his capacity as a Health and Safety Representative), and because he spoke to other workers about the support the union could offer. This prima facie case, which I consider to be a strong one, is made out on the applicants’ evidence, and also derives support from some of the respondents’ evidence taken on its face, without any need to factor in the reverse onus. In other words, I have dealt with this application giving full effect to s 361(2), even if a different approach would have been open.

Balance of convenience

65    The applicants contend the balance of convenience strongly favours the grant of an interim injunction, for the following four reasons set out at [61]-[66] of their written submissions:

61.    First, the evidence establishes that Trego and his children will suffer severe financial hardship if he is not reinstated. The evidence establishes that imminently without his wages, Trego will be unable to meet his financial commitments (including child support payments to his children) and his own basic living expenses.

62.    Secondly, Trego has given evidence about the importance of working at the factory to him and the loneliness and isolation caused by his dismissal. Trego has deposed that in November 2018, he moved to Melbourne from Western Australia after a marriage breakdown, that his youngest children live with his ex-partner in New Zealand, and that he relied heavily on the social connections that the workplace provided him.

63.    The loss of access to non-pecuniary benefits arising from employment has been recognised by the Court to be a factor that ought to be weighed up when considering balance. Naturally, such loss is not easily compensable by an award of damages.

64.    Thirdly, the Court should take into account the prejudice that will be caused to the union and its members by the absence of Trego, (as the union’s sole delegate and a health and safety representative), on the union’s enterprise bargaining campaign and the representation of members at the factory generally.

65.    Mr Flanagan has deposed that Trego’s dismissal has “derailed bargaining for an enterprise agreement” and that since Trago’s dismissal Wesbeam has failed to confirm scheduled bargaining meetings and has stopped communicating with the union about bargaining. It would seem that Wesbeam, in the absence of the site delegate, is now unwilling to recognise the union in bargaining. In the circumstances, this is a factor that weighs heavily in favour of reinstating Trego.

66.    Finally, the Court should take into account the evidence of other prejudice caused to the union by Trego’s dismissal. The evidence establishes that the conduct has had a chilling effect in the factory and the union is likely to loose membership. Flanagan has been unable to find a replacement delegate deposing that one potential candidate refused on the basis that because of Trego’s dismissal he fears for his job. In the circumstances, this is a factor that weighs heavily in favour of reinstating Trego.

(Footnotes omitted.)

66    In response to the applicants’ balance of convenience arguments, counsel for the respondents emphasised the following matters:

(a)    the “small workforce” at the Dandenong factory, which counsel contended was “about 15 employees” in the area in which Mr Trego worked;

(b)    that the employees at the factory, and the company, have “moved on” following Mr Trego’s dismissal, such that “considerable destruction” would occur if Mr Trego were to be reinstated to his former position;

(c)    the difficulties posed by the situation persisting between Mr Trego and Ms Duggan, which I have referred to above, and the duty of care owed by Wesbeam to Ms Duggan to ensure her health and safety within the workplace is not compromised by Mr Trego’s reinstatement; and

(d)    the likelihood that as a result of the complaint made by Ms Duggan, that Wesbeam will need to continue its investigation of the circumstances leading to that complaint upon Mr Trego’s reinstatement.

67    As I indicated to counsel for the respondents at the hearing, I am not persuaded that the factors identified at (c) and (d) above are determinative or significant to the assessment of the balance of convenience. As to (c), for reasons I have explained, I am not persuaded there is such a threat to Ms Duggan’s health and safety, nor am I persuaded that even if there was an unpleasant interaction (about which I make no findings at all), it was of a nature that could only be satisfactorily addressed by keeping Mr Trego out of the workplace. The factor at (a) is one I refer to below. The factor at (b), for reasons I have explained, appears to come from a position of non-acceptance about the role of a union in a workplace and is not a matter to which I give any weight.

68    At the hearing, counsel for the applicants confirmed that the first applicant provides financial support to all four of his children, the two youngest of whom are living in New Zealand with his ex-partner, and the two older who are living interstate in Australia. The respondents properly accepted there was no evidentiary basis to dispute this aspect of Mr Trego’s evidence on balance of convenience. Nor did they seek to dispute his evidence about the non-pecuniary benefits he felt he had obtained in being employed at Wesbeam.

69    There is no information before the Court to dispute Mr Trego’s evidence of his present financial circumstances. During the hearing, counsel for the applicants stated that “imminently Mr Trego will be unable to meet his own basic living expenses of rent and food”.

70    Counsel for the applicants was also instructed during the hearing that Mr Trego received a “payout” of $3,050.00 following his dismissal. This figure was not challenged by the respondents at the hearing. The dismissal occurred on 13 June 2019, some two weeks prior to the interlocutory hearing. I accept that Mr Trego is likely shortly to have exhausted this amount, and is in real danger of not being able to pay his rent, and maintain his own living conditions, let alone maintain his financial contributions to his children. I also take judicial notice that if, as the evidence suggests, he is paying child support, that is likely to be occurring under the Child Support (Registration and Collection) Act 1988 (Cth), and if he falls into arrears, there is at least a real possibility this may trigger additional liabilities under that legislation, including a penalty for late payment under s 67.

71    I consider Mr Trego’s financial circumstances, his child support obligations and the potential loss of current living circumstances, are significant factors weighing in his favour in the assessment of where the balance of convenience lies on this application.

72    These matters, combined with my assessment of the strength of the applicants’ prima facie case, are sufficient to persuade me Mr Trego should have the benefit of interlocutory relief, pending the hearing and determination of this proceeding. I also take into account that there is presently a challenging employment environment for someone in Mr Trego’s position, as Mr Flanagan’s evidence suggests, and another job may well be hard to come by, especially given he will have to disclose the circumstances in which he was dismissed by Wesbeam.

73    The more difficult question is what form the interlocutory relief should take.

74    In my preliminary consideration, I initially had not placed much weight on the applicants’ submissions about the non-pecuniary benefits to Mr Trego in remaining in the workplace. I had been more attracted by the option of ordering Wesbeam to pay Mr Trego his salary and give him his entitlements (or accepting an undertaking to that effect), but not requiring Wesbeam to have him back in the workplace.

75    However, having reflected more fully on the evidence overall, I have decided that arrangement would not be the appropriate outcome.

76    The appropriate order is that Mr Trego be fully reinstated.

77    I take that view after further consideration of Mr Trego’s circumstances, on the present evidence. He had come to Melbourne to make a “fresh start” after his marriage breakdown. He had secured good employment and was on the evidence a hard worker with no performance issues in his actual duties (as opposed to what Wesbeam describes as performance issues, and what at the moment I consider are properly seen as related to his industrial activity).

78    I consider I can take judicial notice of the role that work plays in the lives of members of any community. It is a source of self-respect, of purpose, of a sense that one is contributing to one’s family’s wellbeing and to the community. Working hard in a way that is meaningful and productive brings a sense of satisfaction that is important to a person’s wellbeing. A workplace can be a tangible and critical source of social support for an individual, as some of Mr Trego’s evidence demonstrates. Unemployment is destructive in a myriad of ways. It can have a particularly destructive effect on families. Mr Trego has a family that is already under some strain, due to the breakdown of his marriage, and the geographical distances between him and his children. Where he has as strong a prima facie case about the unlawfulness of his dismissal, and his earlier treatment in his workplace, it is not him and his family who should be placed at further risk of descending into crisis, or disadvantage. His family will benefit from having a father who has retained his capacity to contribute to their needs, and who maintains his sense of self-worth and self-respect. These are intangible matters, but they are important, and they have value and a place in the Court’s consideration of where the balance of convenience lies.

79    I also take into account the applicants’ submission about the “chilling effect” of Mr Trego’s dismissal, and the possible impact on the willingness of other employees to remain as members of the CFMMEU and to seek the union’s support, including for enterprise agreement negotiations. Wesbeam’s employees are entitled to have the support of a union in their workplace, if they wish to. I accept it is likely that if Mr Trego is not fully reinstated, where the Court has found there is a strong prima facie case, that chilling effect may continue and such an effect is inconsistent with the purpose and objects of the general protection provisions of the FW Act insofar as they relate to industrial activity. This is a lesser factor in my reasoning, but it has contributed to it.

80    There are, I accept, considerations which weigh against ordering Wesbeam to fully reinstate Mr Trego. I accept the workplace is a relatively small one, and that Mr Trego will return in circumstances where he has ongoing litigation against his employer, and indeed against two individual employees. That is a situation which can create tension. However, Wesbeam – as an employer – will need to apply some care and resources to the management of that situation, in a way which is less one-sided than the current evidence reveals its previous management was.

Mr Trego’s proffered undertaking

81    During the hearing, counsel for the applicants informed the Court he was instructed to proffer an undertaking on behalf of Mr Trego, to the following effect:

Well, in relation to that – and I will just – I do have instructions. I have – in relation to the evidence of Ms [Duggan], your Honour, we – I have instructions that the first applicant is prepared to make an undertaking which would resolve, in my submission, those concerns, and that’s without the admission, of course, of any wrongdoing. The undertaking, your Honour, is, firstly, to not initiate any communication with Ms [Duggan] and, secondly, to participate in mediation or counselling with Ms [Duggan] to deal with any issues should Ms [Duggan] desire such mediation or counselling.

82    Mr Trego will need to be disciplined and reasonable in his approach to his employer, his workplace, and his fellow employees. He will need to be respectful of the difficulties and challenges of the situation to which he is returning. He may do well to reflect on the evidence of the respondents about the importance of using Wesbeam’s reporting systems for any health and safety concerns, as well as seeking the advice of the union. He will need to be respectful of the situation these orders will place him in his working relationship with Ms Duggan. I have decided it is not appropriate to require any undertaking from Mr Trego in relation to Ms Duggan, because his evidence – and the fact the undertaking was offered – persuades me he understands the sensitivities of this situation and will adjust his behaviour accordingly.

83    Further, the CFMMEU and its officials, including Mr Flanagan, will need to behave professionally and with appropriate restraint and respect for the changes in the situation. The protections given by the FW Act to industrial activity are premised on unions respecting what the law requires of them in the pursuit of that industrial activity.

84    Although bargaining negotiations appear to have stalled, there is no reason on the evidence to believe that after the Court’s interlocutory decision, Wesbeam will not understand its obligations to continue to engage in good faith with the union. Wesbeam’s behaviour in this proceeding to date has been generally reasonable and appropriate, and I consider the Court can expect that approach will continue, now it may be more aware of what the FW Act requires. This includes reconsideration of the wisdom of taking the course foreshadowed by counsel during oral submissions of reigniting an “investigation” into Mr Trego’s conduct while these proceedings remain on foot.

Conclusion

85    There will be orders in accordance with these reasons. There will be no order for costs, given the terms of s 570 of the FW Act: Wesbeam was entitled to take the approach it did to this application, and oppose it. The proceeding will be referred to the National Operations Registry for allocation to a docket judge in the usual course, with a recommendation for expedition given the interlocutory orders which have been made. Pending trial, the parties will always have liberty to apply to the Court for further or varied interlocutory orders.

Associate:

Dated:    1 July 2019