FEDERAL COURT OF AUSTRALIA
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
DATE OF ORDER:
UPON THE UNDERTAKING OF THE APPLICANTS BY THEIR COUNSEL:
(a) 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 that person is a party, affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and
(b) to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking.
THE COURT ORDERS THAT:
1. For the period defined in order 2, the respondent, whether by itself, its employees or agents—and subject only to clause 17 of Appendix A to the O-I Melbourne - Maintenance Enterprise Agreement 2016 (the Agreement)—is restrained from requiring or permitting any of its full-time, salaried employees, known as staff employees, to perform any work usually performed by employees to whom the Agreement applies at the respondent's plant located at Booker Street, Spotswood.
3. The time referred to in order 2 is:
a. if, prior to 4:00pm on Monday, 12 August 2019, the respondent makes an application of the kind referred to in order 4—4:00pm on the business day after that application is determined; or
b. in any other case, 4:00pm on Monday, 12 August 2019.
4. For the purposes of order 3, the application referred to is an application to the Fair Work Commission made under one or more of the provisions of div 6 of pt. 3-3 of the Fair Work Act 2009 (Cth) for orders to suspend or terminate the protected industrial action (within the meaning attributed to that phrase by s 408 of the Fair Work Act 2009 (Cth)) that, as at the date of these orders, the applicants are organising (and in which their members are engaging) against the respondent at or in connection with its plant located at Booker Street, Spotswood.
5. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 By an originating application dated 6 August 2019, the applicants—each an employee organisation (within the meaning attributed to that phrase by s 12 of the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”))—seek relief in the nature of declarations, penalties and injunctions in respect of what are said to be contraventions by the respondent of ss 50, 340(1) and 346 of the FW Act. By the same instrument, the applicants seek interlocutory injunctive relief to restrain until trial the conduct by which those contraventions are said to be constituted.
2 The application for interlocutory injunctive relief came before the court on Thursday, 8 August 2019. It was supported by an affidavit affirmed on 6 August 2019 by the applicants’ solicitor, Ms Marina Leikina. The respondent sought to resist the application and, to that end, relied upon an affidavit affirmed by one of its managers, Mr Paul James O’Driscoll, on Thursday, 8 August 2019. Both affidavits were treated as read.
3 Additionally, both sides filed written outlines of submissions. Given the speed with which the matter came on for hearing, and, with respect, the detailed and very helpful nature of what was provided, their efforts in that regard warrant recording of the court’s gratitude.
4 On Friday, 9 August 2019, orders were made substantially in favour of the applicants. Brief oral reasons for those orders were provided on the undertaking that they would be supplemented by more fulsome, written reasons.
5 These are those reasons.
6 The respondent operates a glass products manufacturing plant located in Booker Street, Spotswood, Victoria (hereafter, the “Factory”). It employs at the Factory a complement of mechanical and electrical maintenance employees, whose role, as might be imagined, is to maintain the machinery that is used there. The applicants represent those employees (who are referred to, hereafter and collectively, as the “Maintenance Employees”).
7 The employment of the Maintenance Employees is covered by the O-I Melbourne – Maintenance Enterprise Agreement 2016, an enterprise agreement approved by the Fair Work Commission in accordance with Pt 2-4 of the FW Act. That agreement (hereafter, the “EA”) nominally expired on 14 February 2019.
8 Since late 2018, the parties have bargained in respect of terms to be incorporated into a new enterprise agreement to replace the EA. That bargaining is ongoing. Perhaps amongst others, the key “sticking point” appears to be the respective wages claims that each side has advanced. The Maintenance Employees (presumably through the applicants) press for wage increases that are significantly higher than those that the respondent has offered.
9 In support of the claims that they have advanced during their bargaining, the applicants have organised—and the Maintenance Employees have engaged in—various forms of protected industrial action (within the meaning attributed to that phrase by s 408 of the FW Act).
10 Most recently, the Maintenance Employees have engaged in action in the form of bans on the performance of maintenance work at a part of the Factory known as “3 tank” (those bans are referred to, hereafter, as the “Bans”). There is before the court some evidence about what it is that “3 tank” is used for at the Factory; but, as is often the case in matters brought on for urgent hearing, it is a high-level summary only. That is no criticism of either party—indeed, nothing turns upon it, other than that I am unable to describe with any precision the function at the Factory that “3 tank” actually serves.
11 Regardless, what is clear—and not relevantly disputed—is that the respondent is unable to reliably or optimally operate that part of the Factory without having performed what might conveniently, if perhaps simplistically, be described as the day-to-day maintenance tasks that, but for the Bans, would be performed by the Maintenance Employees.
12 To that end, the respondent has attempted, in recent weeks, to fashion an alternative source of labour to undertake that work. Initially, when the Bans—or bans similar to them—were first implemented, that alternative labour source assumed the form of a subcontractor that the respondent engaged to perform the maintenance tasks in question. For reasons that are not necessary to traverse in full here, that subcontractor appears to have been persuaded that it should withdraw from providing the services for the provision of which it was engaged. There is evidence of what have been described as “unsavoury” circumstances that are said to have led to that withdrawal, including circumstances involving the making of veiled threats by an official of the second applicant and apparent threats of violence or other physical intimidation. It is unnecessary to say more about those circumstances, if for no other reason than that the subcontractor’s motivations for withdrawing from the provision of the relevant maintenance services are not material.
13 What is material is how the respondent has since dealt with its need to have the relevant maintenance work at the Factory (and, in particular, on “3 tank”) performed. Since the subcontractor’s withdrawal, the respondent has deployed to that end various management or salaried employees to whose employment the EA has no application.
14 It is that deployment that is at the heart of the present application. The EA contains, as “Appendix A” a series of provisions applicable to the performance of maintenance work at the Factory. Clause 17 of Appendix A is in the following terms:
17 staff use of tools
Staff will use tools in emergency situations; where there is a threat to safety; in training situations; and for production diagnosis. It is not intended that staff be hands on at breakdowns unless an emergency situation arises.
15 The applicants complain that the respondent’s deployment of management or other salaried employees to perform the “3 tank” maintenance work that would otherwise fall to be performed by the Maintenance Employees offends cl 17 and, consequently, is being effected in contravention of s 50 of the FW Act.
16 Section 50 of the FW Act provides, simply enough:
A person must not contravene a term of an enterprise agreement.
17 Sections 51, 52 and 53 identify the circumstances in which a person might be said to owe obligations under an enterprise agreement. They relevantly provide as follows (emphasis original):
(1) An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person.
52 when an enterprise agreement applies to an employer, employee or employee organisation
When an enterprise agreement applies to an employee, employer or organisation
(1) An enterprise agreement applies to an employee, employer or employee organisation if:
(a) the agreement is in operation; and
(b) the agreement covers the employee, employer or organisation; and
(c) no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.
Employees and employers
(1) An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.
18 For present purposes, there is no contest that the EA covers the respondent (insofar as concerns its employment of the Maintenance Employees). Notwithstanding that its nominal expiry date has passed, it continues in operation: FW Act, ss 54 and 58. That being so, it “applies” to the respondent and, consequently, imposes upon the respondent obligations and entitlements in accordance with its terms. By s 50 of the FW Act, the respondent is obliged to abide by its terms (which is to say that, amongst other things, it must discharge the obligations that those terms require of it). As much was not the subject of contest at the hearing.
19 The applicants also contend that the respondent’s deployment of management or salaried staff to the performance of the relevant “3 tank” maintenance tasks has been effected in contravention of ss 340(1) and 346 of the FW Act. Those provisions prohibit the respondent from subjecting the Maintenance Employees to adverse action (within the meaning attributed to that phrase by s 342(1) of the FW Act) for various, identified reasons. The former relevantly prohibits adverse action taken either on account of a person’s possession or exercise of a “workplace right”, or to prevent their exercise of such a 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”.
20 The applicants’ claim for interlocutory relief seeks orders to restrain the respondent from continuing to deploy management or salaried staff to the performance of the relevant “3 tank” maintenance tasks. They contend that that deployment has deprived them (and threatens to continue to deprive them) of the impact that the Bans would otherwise visit upon the respondent. In other words, their complaint is that, but for the deployment that they seek to restrain, that industrial action would visit upon the respondent a measure of commercial pressure that would aid in their pursuit of the claims in respect of which it has been organised and engaged in.
21 For the reasons that follow, the applicants are entitled to the relief sought.
Interlocutory relief: General principles
22 The court’s power to grant interlocutory injunctive relief is not doubted: FW Act, s 545 (read together with s 539(1) and item 4 of the table set out at s 539(2)); Federal Court of Australia Act 1976 (Cth), s 23.
23 Likewise, 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 they seek, the applicants must demonstrate that they have 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).
24 When considering the grant of an interlocutory injunction, the issue of whether an applicant has established a prima facie case and whether the balance of convenience favours injunctive relief are related inquiries. Whether there is a prima facie case is to be considered together with the balance of convenience: Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238, 261  (Dowsett, Foster and Yates JJ).
25 In Bullock v FFTSA (1985) 5 FCR 464, Woodward J (with whom Smithers and Sweeney JJ relevantly agreed) stated (at 472):
…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.
26 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).
Prima facie case
27 It is convenient to split the analysis as to whether or not there exists a prima facie case for the relief that the applicants seek. Insofar as concerns what the applicants advance under s 50 of the FW Act (on the one hand) and under ss 340(1) and 346 (on the other), I consider that such a case exists. In the former case, I consider that it is strong, if not very strong. In the latter case, I consider that it is very weak.
The s 50 case
28 Largely for the reasons that the applicants advanced orally at the hearing and in their written outline of submissions, I consider (albeit on a prima facie case basis) that the respondent’s deployment of management and salaried staff to the performance of the relevant “3 tank” maintenance work is being and has been effected in breach of cl 17 of Appendix A to the EA.
29 On this front, the respondent advanced three contentions: first, that cl 17 does not prohibit the deployment that has occurred; second, that the deployment falls (and has fallen) within the safety exception for which that clause expressly provides; and, third, that cl 17 is, by reason of s 253 of the FW Act, of no effect because it is not a term about a “permitted matter” (within the meaning attributed to that phrase by s 172 of the FW Act). Relatedly, it was said that the parties had, for some time, construed and applied the clause so as not to preclude the deployment of management and salaried staff during times of industrial action.
30 Respectfully, I do not find the first contention persuasive. Clause 17 seems—I think clearly—designed to afford the Maintenance Employees some measure of protection against the prospect that their work might be performed by others. It presents as a classic demarcation clause, the apparent purpose of which is to preserve unto the Maintenance Employees (save in the small number of circumstances for which express provision is made) the right to perform all maintenance work at the Factory (or, perhaps more accurately, all of it that requires the use of tools, as I imagine most of it would). Counsel for the respondent maintained that it was not open, even on a prima facie case basis, to read cl 17 as a prohibition on the deployment of management and salaried staff to maintenance (or tool-based) work. With respect, I consider that it is plainly—and, I think, strongly—arguable that the clause is intended to have the effect of prohibiting that which the respondent has effected.
31 Likewise, I reject the respondent’s contention that the deployment of management or salaried staff to the performance of the relevant “3 tank” maintenance work does not offend (and has not offended) cl 17 because it is (and has been) warranted by safety concerns. Distilled to its essence, the respondent’s submission was that the running of improperly maintained machinery at the Factory was inherently unsafe. Hence, so the contention proceeded, it was within the contemplation of cl 17 that management or salaried staff would be deployed to perform maintenance work in circumstances where the Maintenance Employees refused to do so. Again with respect, that submission requires a leap in logic that the evidence was not able to sustain. It might well be that some maintenance tasks are necessary to preserve the safety of the respondent’s workforce. But many, inevitably, will not be. Again at the very least, the applicants’ contention—that the deployment of staff fell (and/or falls) foul of cl 17 and, hence, was (and/or is being) effected in contravention of s 50 of the FW Act—is sufficient to establish a prima facie case for the relief sought.
32 So too is the contention that cl 17 has effect; that is, that it ought not to be read as a provision to which the FW Act, by s 253, affords no effect. Clause 17 is not a blanket prohibition against the deployment of management or salaried staff to the performance of maintenance (or tool-based) work. If it were, the respondent’s contention would undoubtedly be stronger. In my view, however, it must (at least on a prima facie case basis) be read as a provision designed to afford the Maintenance Employees a reasonable measure of protection against the prospect that the work typically allocated to them might be performed by others. It is, in that sense, properly to be understood (again, on a prima facie case basis) as a provision that pertains to the relationship between the respondent and the Maintenance Employees: FW Act, s 172(1)(a).
33 It follows, then, that I accept what the applicants advanced: namely, that there is at least a prima facie case that the respondent’s deployment of management or salaried staff to the performance of “3 tank” maintenance tasks has been and (if it is still occurring) is being effected in contravention of cl 17 of Appendix A to the EA (and, by extension, in contravention of s 50 of the FW Act).
The adverse action case
34 By s 341(1) of the FW Act, a person is deemed to possess a “workplace right” if (amongst other things) he or she is able to initiate or participate in a process under a workplace law. There is no obvious dispute that, by their having engaged in protected industrial action, the Maintenance Employees have exercised such a right.
35 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.
36 In summary form, the applicants’ claim is that, by the deployment of management or other salaried staff to the maintenance tasks that would otherwise fall to them to complete, the respondent has subjected the Maintenance Employees to adverse action and has done so because (or for reasons that include that):
(1) each of the Maintenance Employees is a member of one of the applicants;
(2) each of the Maintenance Employees has participated in a lawful activity organised by the applicants (or either of them), namely the Bans;
(3) each of the Maintenance Employees has complied with lawful requests of the applicants (or either of them) to engage in protected industrial action against the respondent (again, in the form of the Bans);
(4) each of the Maintenance Employees possesses or has exercised a workplace right (specifically, the right to engage in protected industrial action under the FW Act—specifically, the Bans); and
(5) it hopes to prevent each of the Maintenance Employees from exercising his or her workplace right to engage in protected industrial action under the FW Act (and, more specifically, to prevent further engagement in the Bans).
37 Section 342 of the FW Act defines what is meant by “adverse action”. Relevantly, an employer takes adverse action against an employee if it injures the employee in his or her employment, or alters the position of the employee to his or her prejudice.
38 On that score, the respondent contended that the deployment of management and salaried staff to “3 tank” maintenance work could not be adverse action because it was nothing more than an unremarkable exercise of managerial prerogative in response to protected industrial action. That that might amount to adverse action was said to be “fanciful”.
39 Respectfully, the respondent’s contention is not without force (although perhaps not to the extent that the competing assertion might fairly be dismissed as summarily as the respondent dismisses it). If the applicants’ contention is to be accepted, action that an employer takes in response to—that is to say, by way of amelioration of the effects of—protected industrial action will always qualify as adverse action against those by whom that protected industrial action is taken. Instinctively, that is difficult to reconcile with the scheme of the FW Act (about which more is said below).
40 Nonetheless, I accept the applicants’ submission that the deployment of management and salaried staff to the performance of “3 tank” maintenance work arguably might amount to adverse action against the Maintenance Employees in this case. I doubt that it would amount to an “injury” for the purposes of the definition; more likely (if anything), it might amount to prejudicial alteration of the relevant kind: Patrick Stevedores Operations No 2 Proprietary Ltd v Maritime Union of Australia (1998) 195 CLR 1, 17-18  (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).
41 The more immediate weakness of the applicants’ adverse action case is that there is no evidence to substantiate the contention that the adverse action that has been taken has been taken on account of any of the prohibited reasons that the applicants identify. Those prohibited reasons may conveniently be grouped into two classes: those that manifest in the Maintenance Employees’ engagement in the Bans (which covers the applicants’ contentions concerning workplace rights and industrial activity); and the remaining reason, namely that the Maintenance Employees are all unionists.
42 As to the first group, it is apparent beyond reasonable contention that the respondent has sought to deploy management and salaried staff to the performance of “3 tank” maintenance tasks because it has been unable to get anybody else to perform that work. Clearly enough, that inability is the product of the Maintenance Employees’ protected industrial action (that is to say, their refusal to perform the work that would otherwise fall to them to perform). But to acknowledge as much is not to nominate that industrial action as a reason for the respondent’s conduct. On the contrary, as French CJ and Crennan J put it in Board of Bendigo Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (“Barclay”), 523 :
…It is a misunderstanding of, and contrary to, Bowling to require that the establishment of the reason for adverse action must be entirely dissociated from [a relevant attribute; in that case,] an employee’s union position or activities. Such reasoning effectively institutes an interpretation of the relevant provisions indistinguishable from that of Isaacs J in Pearce, which was rejected in Bowling. The onus of proving that an employee’s union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence.
43 Equivalent reasoning has been applied many times. In Wood v City of Melbourne Corporation (1979) 26 ALR 430 (Smithers J), an employer that dismissed an employee at the behest of a union that was unhappy about his refusal to engage in industrial action was held not to have dismissed the employee because of that refusal. In Australian Workers’ Union (AWU) v John Holland Pty Ltd (2001) 103 IR 205 (Goldberg J), a builder that dismissed a union member at the behest of a rival union that was unimpressed by what it considered was an intrusion into its “turf” was held not to have done so because the employee was a member of the “intruding” union. There are many other trial- or appeal-stage examples in which equivalent reasoning was applied: see, by way of sample only, Greater Dandenong City Council v Australian Municipal, Administrative, Clerical, and Services Union (2001) 112 FCR 232 (Wilcox, Merkel and Finkelstein JJ); Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 (Branson J). Barclay was, itself, a more recent example.
44 Here, there is no obvious basis to think that the respondent’s deployment of management or salaried staff to the performance of “3 tank” maintenance work was actuated in any way by the Maintenance Employees’ engagement in the Bans. It would appear to have been actuated, very simply, by the need to have the work performed. That that need arose has arisen because the Maintenance Employees are engaging in the Bans is clear; but it is not sufficient to qualify the Bans as a reason for the respondent’s conduct. There is no evidence to suggest that it has been (or is being) effected as some kind of punishment or “payback” for the Bans. There is no evidence to suggest that the respondent wouldn’t embark upon precisely the same course in circumstances where, for any other reason, the Maintenance Employees were unwilling (or, for that matter, unable) to perform the work in question.
45 Insofar as concerns the Maintenance Employees’ status as members of one or other of the applicants, the evidence is similarly non-existent. The applicants maintain that the reference in s 346(a) of the FW Act to a person being a “member” of an organisation should be understood as also covering activities engaged in as an incident of that status: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212, 222-224 - (Gray and Bromberg JJ, Lander J dissenting); Australian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165, 204-208 -, 226  (North J). I proceed on the basis that that proposition is correct, superficially difficult though I think it is to reconcile with High Court authority in the analogous discrimination sphere: Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
46 Again, the applicants’ contention runs into the same problem: the activity said to attract the application of s 346(a)—that is, the activity that is alleged to have been engaged in as an incident of the Maintenance Employees’ status as union members—is the Maintenance Employees’ engagement in the Bans. For the reasons identified above, there is no basis to suspect that that factored in any way as a reason for the respondent’s having acted as it has (or is or did).
47 For those reasons, I don’t consider that there is much strength to the applicants’ submission that the deployment of management and salaried staff to “3 tank” maintenance work has been effected for reasons that Pt 3-1 of the FW Act prohibits.
48 Section 361 of the FW Act, upon which some reliance is placed, is of no assistance to the applicants on that front. In their written outline of submissions, the applicants contended:
As stated above, although this is an interlocutory injunction to which s. 361(2) applies, the reverse onus relating to proof of prohibited reason is still be taken into account in determining the strength of the prima facie case: Police Federation of Australia v Nixon (2008) 168 FCR 340 at . There Ryan J held that the availability of the reverse onus at trial could be taken into account for this purpose. This approach has consistently been applied by the Court. This operates powerfully in favour of the relief sought by the applicants.
49 In Australian Workers’ Union v Chemring Australia Pty Ltd  FCA 750, I had occasion to consider a similar submission. I observed as follows:
45 The existence of the reverse onus of proof in s 361(1) does not, in my view, overcome [a previously expressed] 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() 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  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  FCA 563,  (Greenwood J); AMWU & anor v McCain Foods (Aust) Pty Ltd  FCA 1126,  (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  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.
50 In that case, no submission was put that Police Federation v Nixon (2008) 168 FCR 340 (Ryan J) (hereafter, “Nixon”) and the cases that have followed it (to the list of which might be added Construction, Forestry, Mining and Energy Union v Angelo Coal (Capcoal Management) Pty Ltd (2016) 266 IR 185 (Katzmann J)) ought not to be followed. Despite my scepticism, I proceeded there on the assumption that the reverse onus was applicable in a context not materially different to that with which the court is now confronted.
51 In this case, the respondent urges the contrary course. Counsel for the respondent squarely put the correctness of Nixon in issue and urged that I not follow it.
52 Again with due respect to those who have adopted a different view, I cannot reconcile the reasoning that Ryan J applied in Nixon with the plain words of s 361(2). It is not necessary that I should describe his Honour’s (and, indeed, their Honours’) reasoning as “wrong” or “plainly wrong” (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)). It is sufficient that I simply decline to follow it. The meaning of the words of s 361(2) is clear. 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 to proceed as though s 361(1) “appl[ies]” in that context. Yet s 361(2) says that it doesn’t. The applicants cannot, at this juncture, draw any strength from the existence of the reverse onus of proof to which s 361(1) gives effect.
53 For these reasons, I consider that the applicants’ adverse action causes of action, judged at the level of a prima facie case, are very weak. I fall short of saying that they have failed to establish a prima facie case at all; but what case there is is, as I have made clear, very weak.
Balance of convenience
54 Counsel for the applicants contended that the balance of convenience was (and is) such as should warrant an exercise of the court’s discretion to grant interlocutory injunctive relief, particularly given the strength of its prima facie case (at least insofar as concerns s 50 of the FW Act).
55 By their written outline of submissions, the applicants contended:
Engagement in protected industrial action has resulted in ACI making deductions from the Trade Employees[’] usual pay for the periods of protected industrial action. This has been acknowledged by the plant manager, Mr O'Driscoll as recently as 4 July 2019. Further, Ms Leikina deposes to information from two Spotswood Plant employees, who are also union delegates, that when [other] industrial action was being taken between 30 April 2019 to 1 July 2019 ACI did not pay employees their usual income for the days they did not work. Since the partial work [bans] commenced on 2 July 2019 employees are losing almost half of their usual income. These losses will continue.
56 Respectfully, that submission does not correctly identify the prejudice to the Maintenance Employees that a failure to grant interlocutory injunctive relief will visit upon them. The money that they are losing on account of their protected industrial action is money to which they are not entitled. If they wish to be paid in full, it is, so it would seem, within their power to go back to work. It is, then, not in the reduction of their income that the relevant prejudice lies.
57 Instead, it lies in the nature of the right that the Maintenance Employees are exercising. Counsel for the applicants contended that protected industrial action should be understood as a valuable measure by which employees might persuade employers to accede to claims made during enterprise bargaining. Respectfully, I agree. The scheme of the Act is such as to permit, in limited circumstances, the application of what might not unfairly be described as lawful coercion: that is, the application of pressure, usually economic in nature, that is designed to make as difficult as possible any ongoing resistance to the claims advanced from the other side of the proverbial bargaining table. In JJ Richards & Sons Pty Ltd v Fair Work Commission (2012) 201 FCR 297 at 306 , Jessup J put it thus:
…the ability to take protected industrial action is to be seen as part and parcel of the statutory regime for bargaining in pursuit of, or in resistance to, the making of [enterprise] agreements. This way of looking at the legislation is amply justified by the Parliament’s own words in identifying the object of the Act: see s 3(f).
58 The Maintenance Employees (and the applicants, as their bargaining representatives) legitimately expect (and expected) that their protected industrial action would visit upon the respondent significant—and perhaps even overwhelming—economic pressure. They evidently did believe (and, in any event, are and were entitled to intend) that their refusal to perform “3 tank” maintenance work would (and should) leave the respondent with few, if any, alternatives but to accept the bargaining claims that the applicants have advanced on their behalf. The outcome that they intended the Bans to engender was the acceptance of their claims through the exertion of significant economic pressure—manifest in forms as significant as the potential (presumably temporary) closure of the Factory. No doubt they intended to realise that goal quickly so that the reductions in their take-home pay might be minimised.
59 By deploying management and salaried staff to the performance of “3 tank” maintenance work, the respondent has sought to curtail—and, on the evidence, has curtailed—the impact that the Maintenance Employees (and the applicants, as their bargaining representatives) legitimately hoped to realise from their protected industrial action. Given what I have already said about the strength of the applicants’ prima facie case (at least under s 50 of the FW Act), that is a factor that tips the balance of convenience strongly in favour of a grant of interlocutory injunctive relief. Clearly enough, the relevant prejudice is not of a kind that lends itself to correction by means of an order for damages.
60 Countervailing that is the impact that the respondent’s inability to perform the “3 tank” maintenance tasks threatens to visit upon it and its other employees at the Factory, and upon those of its customers who depend upon the reliable supply of glass products from the Factory. The respondent led evidence that suggests that any such inability threatens to visit catastrophic consequences, up to and including the permanent closure of the Factory.
61 Although plainly sceptical of that evidence (perhaps fairly so—the court makes no assessment), counsel for the applicants did not invite the court to ignore it, nor paint it as so unpersuasive that it should attract little, if any, weight. Instead, he pointed out—correctly and fairly—that, if the Maintenance Employees’ protected industrial action in fact threatens the sorts of consequences to which the respondent’s evidence adverted, then there are mechanisms available to the respondent under the FW Act by which they might be avoided.
62 Division 6 of Pt 3-3 of the FW Act is headed “Suspension or termination of protected industrial action by the FWC”. It contains a number of provisions through which bargaining participants (and others) adversely affected by protected industrial action may apply to the Fair Work Commission for orders that the action be suspended or terminated. Section 423, in particular, empowers the Fair Work Commission, in identified circumstances, to suspend or terminate protected industrial action that threatens the sorts of catastrophic economic consequences to which the respondent’s evidence points. Any such application by the respondent in the present circumstances would require that the Fair Work Commission consider (amongst other things), first, whether the Bans have been engaged in for a protracted period of time; and, second, whether they, in fact, have visited or threaten imminently to visit significant economic harm upon the respondent. Other provisions apply to like effect in respect of harm that is threatened against third parties, such as employees who are not engaged in protected industrial action: FW Act, s 426. The questions posed by those provisions would, of course, fall to the Fair Work Commission to answer in the event that any application were made.
63 None of that, though, is for the court to consider here. I accept the applicants’ contention that the consequences to which the respondent’s evidence adverts ought not to stand in the way of a grant of interlocutory injunctive relief.
64 For the reasons herein identified, the applicants have (and had) a strong prima facie case for the relief that they seek (and sought) and the balance of convenience favours (and favoured) that they should receive it. I will (and did), then, grant relief substantially in the form in which it was sought.
65 There is (and was), however, an issue of timing of which it is (and was) appropriate to take account. The respondent, to date, has (and had) not been unable to undertake the “3 tank” maintenance work in question. That inability will (or did or may) arise from a grant of injunctive relief (consequent upon the view that I’ve expressed above that its present method of undertaking that work has been and is, on a prima facie case basis, unlawful). In circumstances where, first, the inability to have that work performed (if it is realised) will arise as a consequence of the court’s orders (at least until the matter is more authoritatively determined at trial); and, second, the conduct of which the applicants complain has (and had) been ongoing for several weeks (and, hence, does (and did) not attract a need for relief that is as urgent as is often the case with this species of interlocutory application), it is (and was) appropriate that the respondent be given an opportunity to consider whether it should make an application under Div 6 of Pt 3-3 of the FW Act (and, if it were to do so, to prosecute such an action to resolution, which would normally occur with haste).
66 That being so, the restraint that the court will (and did) impose will (and did) not take immediate effect. Instead, it will (or was to) take effect at 4:00pm on Monday, 12 August 2019; or, if the respondent opts (or opted) to make an application under Div 6 of Pt 3-3 of the FW Act, at 4:00pm on the day after that application is determined.