Federal Court of Australia

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd [2024] FCA 805

ORDERS

THE COURT ORDERS THAT:

1.    The claim for interlocutory relief contained in the amended originating application filed on 5 July 2024 be dismissed.

2.    The proceeding be referred to the National Operations Registry for allocation to a docket judge.

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

REASONS FOR JUDGMENT

(Revised from transcript)

THAWLEY J:

INTRODUCTION

1    The first applicant is the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The CEPU is a registered organisation of employees under the Fair Work (Registered Organisations) Act 2009 (Cth) and an industrial association within the meaning of the Fair Work Act 2009 (Cth) (FWA).

2    The first respondent is Absolute Commissioning Group Pty Ltd (CoMade). Mr Hitchens (the second respondent) is the Executive Director of CoMade.

3    The relevant events occurred in the context of a project for the construction of turbines near Kurri Kurri (the Hunter Power Project). The Hunter Power Project is owned by Snowy Hydro Ltd, which engaged UGL Engineering Pty Ltd as the principal contractor. Work commenced in early 2022. There are around 424 employees of UGL working on the project. Around 130 of those UGL employees are electrical and instrumentation workers.

4    In about October 2023, UGL engaged CoMade to provide supplementary electrical and instrumentation services. These services were performed by around 30 trade qualified electricians employed by CoMade. The contractual arrangements between UGL and CoMade were not in evidence. UGL is not a party to these proceedings.

5    CoMade and the CEPU are parties to the Absolute Commissioning Group Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022 – 2025 (the Enterprise Agreement).

6    Mr Shoemark (the second applicant) and Mr Brazier (the third applicant) were employees of CoMade contracted by CoMade to work on the Hunter Power Project from 26 March 2024. Mr Shoemark and Mr Brazier are licensed electricians and members of the CEPU. Mr Shoemark was also a CEPU delegate. On 25 June 2024, CoMade terminated the employment of Mr Shoemark and Mr Brazier in circumstances more fully described below.

7    These proceedings were commenced by an originating application dated 3 July 2024, which included an application for interlocutory relief which included:

2.    Pending the hearing and determination of this application, or further order, an order that the first respondent treat the terminations of the second and third applicants as invalid and of no force and effect, and reinstate the second and third applicants to the employment and the positions they held at the Project with the first respondent as at 24 June 2024.

3.    Pending the hearing and determination of this application, an order restraining the first respondent from terminating the employment of the second and third applicants.

8    The application came before the duty judge on 5 July 2024 and various orders were made, including listing the matter for hearing in the week of 15 July 2024. The claim for interlocutory relief was heard today.

THE FACTS

9    The applicants relied on six affidavits in support of their application, being:

    affidavit of Mr Ashley Bamford, a Union Organiser for the CEPU, affirmed 3 July 2024;

    affidavit of Mr Bennett Shoemark, affirmed 3 July 2024;

    affidavit of Mr Bennett Shoemark, affirmed 16 July 2024;

    affidavit of Mr Dean Arthur Brazier, affirmed 3 July 2024;

    affidavit of Mr Joseph Kennedy, a solicitor for the applicants, affirmed 3 July 2024;

    affidavit of Mr Timothy Craig Grellman, a solicitor for the applicants, affirmed 5 July 2024.

10    The respondents relied on the following three affidavits:

    affidavit of Mr John Hitchens, affirmed 12 July 2024;

    affidavit of Mr John Hitchens, affirmed 18 July 2024;

    affidavit of Mr David Wiltshire, the Human Resources Manager of Absolute Commissioning Group Pty Ltd, affirmed 12 July 2024.

11    What follows is a summary of the facts and contended facts for the purpose only of determining the interlocutory issues in dispute.

12    From 26 March 2024, CoMade employed Mr Shoemark and Mr Brazier as Grade 5 Electrical Workers to perform work at the project. Mr Shoemark’s and Mr Brazier’s employment fell under the Enterprise Agreement: see cl 5 and schedule A of the Enterprise Agreement.

13    At the Hunter Power Project, workers work a 10/4 (10 days on, 4 days off) roster of either day shift or night shift. There is an accommodation camp a few kilometres from the project, where many of the workers engaged in the project reside.

14    On 2 April 2024, Mr Shoemark was elected as a CEPU delegate and Health and Safety Representative (HSR). In his role as delegate, Mr Shoemark was an officer of the CEPU and had a role and responsibilities under the Enterprise Agreement. In his role as HSR, Mr Shoemark represented the electrical and instrumentation work group on day shift. Mr Shoemark’s role was not confined to representing CoMade employees. He also represented UGL employees.

15    The role of HSR is one for which the Work Health and Safety Act 2011 (NSW) (WHS Act) provides. The WHS Act is a “workplace law” within the meaning of the s 12 of the FWA, being a law of a State that regulates the relationships between employers and employees, by dealing with occupational health and safety matters.

16    Section 68 of the WHS Act includes:

(1)    The powers and functions of a health and safety representative for a work group are—

(a)    to represent the workers in the work group in matters relating to work health and safety, and

(b)    to monitor the measures taken by the person conducting the relevant business or undertaking or that person’s representative in compliance with this Act in relation to workers in the work group, and

(c)    to investigate complaints from members of the work group relating to work health and safety, and

(d)    to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking.

(2)    In exercising a power or performing a function, the health and safety representative may—

(a)    inspect the workplace or any part of the workplace at which a worker in the work group works—

(i)    at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace, and

(ii)    at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, and

(b)    accompany an inspector during an inspection of the workplace or part of the workplace at which a worker in the work group works, and …

17    Between June 2023 and July 2024, the regulator, SafeWork NSW, issued more than 40 improvement notices to UGL.

18    On 21 May 2024, following a series of safety concerns at the project, Mr Shoemark sought to attend a Safety Committee Meeting (usually held fortnightly), but was asked to leave by Mr Kelly who was the chairperson of the Safety Committee and an employee of UGL. Mr Shoemark says that Mr Kelly stated:

You are not part of this committee. There are too many HSRs in the room. You are not part of this group. Please leave the meeting.

19    Mr Shoemark gave an account of a conversation with one of CoMade’s supervisors (Mr Hill) on 28 May 2024. In his first affidavit, Mr Shoemark stated:

[72]    I said to Mr Hill words to the effect of:

“I have some safety concerns. Can I attend a Safety Committee meeting.”

[73]    He said to me words to the effect of:

“Do not attend Safety Committee meetings or HSR Committee meetings.”

[74]    I argued against this and said to Mr Hill words to the effect of:

“Can I please attend at least just one meeting to raise the concerns of the workgroup around the camp?”

[75]    However, Mr Hill again refused my request.

[76]    As a result, I did not attend any gatherings or meetings of the Safety Committee until June 2024, which I describe below.

20    Mr Shoemark states that he became very concerned about significant safety risks at the project by early June 2024. On 11 June 2024, Mr Shoemark attended an HSR meeting where he raised concerns about the amenities at the workers’ camp and the heat policy. Mr Shoemark’s first affidavit included:

[84]    On 11 June 2024, I attended a[n] HSR Meeting. Craig Kelly attended this meeting. All of the HSRs for the site were also in attendance. I estimate that eight HSRs attended the meeting.

[85]    During the meeting, I raised concerns about the accommodation at the project for workers. I said words to the effect of:

    “There are still concerns about the amenities at the camp.”

[86]    Mr Kelly then said words to the effect of:

    “The Camp is not part of UGL’s jurisdiction.”

21    Throughout June 2024, Mr Bamford received several reports from CEPU members about safety concerns at the project. These included concerns about insufficient plant/pedestrian delineation, no clear access and egress pathways, lack of first aid, insufficient amenities, inadequate risk assessment, temporary power not being installed in accordance with Australian standards, non-compliance with safety requirements and lack of emergency lighting. On 12, 13 and 17 June, Mr Bamford inspected the project to investigate suspected contraventions of the WHS Act.

22    On 18 June 2024, Mr Shoemark participated in a safety walk at the site, which was attended by one of UGL’s supervisors. A safety walk is an inspection of the project site by members of the Safety Committee (HSRs) to investigate safety issues. During the walk, Mr Shoemark raised several safety concerns such as improper insulation of electrical cables, lack of emergency lighting, errors in signage and problems with a temporary electrical distribution system.

23    Mr Brazier was elected as HSR for electricians on “Swing 2” of the night shift on 19 June 2024.

24    On 19 June 2024, Mr Bamford attended the site again to carry out a safety walk with Mr Shoemark and employees of UGL. Mr Hill was also present. Mr Shoemark again raised several safety issues on this walk. Concerns were raised about the adequacy of the project’s emergency response plan and the absence of site paramedics. Mr Shoemark considered that there was a serious and imminent risk because the lack of a dedicated response team for an emergency meant that an injured worker would not have proper care and treatment. The work group decided to cease work. Section 84 of the WHS Act provides:

A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard.

25    On 20 June 2024, a SafeWork inspector attended the project and issued an improvement notice in respect of the lighting along emergency access pathways. Work recommenced on 20 June 2024. Work was ceased on several other days in June 2024 under s 84 of the WHS Act.

26    On 21 June 2024, Mr Shoemark attended an HSR meeting and Safety Committee meeting. During the Safety Committee meeting, UGL agreed to have a paramedic onsite. Later that day, Mr Brazier participated in a safety walk with some union organisers, UGL managers and other HSRs on the site.

27    During the night shift on 22 June 2024, Mr Brazier asked managers for a safety walk to check whether their lighting concerns had been addressed. Rain prevented the safety walk from proceeding and workers were sent home eight hours into the shift.

28    On 23 June 2024, following the safety walk, Mr Brazier advised the work group of a plan to move light towers to improve lighting. The group voted to cease work and Mr Brazier informed UGL management of this decision.

29    During the day shift on 24 June 2024, Mr Bamford exercised his right under s 117 of the WHS Act to enter the project and conduct a further safety walk. Mr Shoemark participated in the walk. Mr Kelly of UGL was also present, as was Mr Hill. During the walk, Mr Shoemark identified further safety concerns.

30    Later that day, during the night shift, Mr Brazier requested a meeting between the employees and their union representatives. Mr Bamford was present at least at the end of the meeting. Mr Bamford’s evidence included:

[82]    I stayed back and also visited night shift to deal with the lighting issues. Adam Konstantinidis ([CEPU] Organiser) attended with me. I attended the back end of the electrical prestart meeting for night shift. The electrical team of about 15-20 workers, some of whom were employed by UGL, and some of whom were employed by CoMade, were present, as were Lindsay Olsson and Bev from UGL's Health, Safety and Environment Team. During the meeting Dean Brazier said, in reference to the lighting on site: “If nothing has changed, then our position hasn't changed. But let us talk about it with our representation.”

[83]    After the prestart meeting had finished, I then held a meeting with the night shift workers about the lighting issues. Joe Uati from the CFMEU was also there. Given that the lighting was deficient in the access to and egress from the work areas, the workers agreed that if transport could be arranged to the work areas while the lighting issue was addressed, that would be a suitable alternative.

[84]    After the meeting, at around 6:08pm, Dean Brazier and I went and spoke to Mr Olsson and Nick De Palma (UGL Night Shift Lead). We suggested to the managers that they transport the workers to their work areas to avoid the risks posed by the inadequate lighting. Words to the following effect were then said:

Lindsay [Olsson]: There is already a PIN in, it was not a prohibition and we have time to comply.

Me: I am trying to work with you here to break this stalemate.

Nick [De Palma]: I do not want to introduce new hazards to the workplace

Me: You can drive right up to the LV substation that you want them to work in. If you have emergency lighting there, it is not going to be an issue. If you want the workers to return this is an option to make that happen.

Lindsay: There is sufficient lighting. It is not the MCG, we are not going to spend hundreds of thousands of dollars installing more lighting.

Me: So what you are telling me, is that you are not going to do anything to rectify this PIN?

Lindsay: [nodded]. The emergency lighting is sufficient.

Nick: The workers can utilise the headlamps.

Me: Headlamps do not meet the requirements of emergency lighting.

[85]    At end of the conversation, Lindsay said: We are not getting buses. If the workers don't go out to work, we will send them home and they won't be paid.

[86]    I then went and relayed the conversation to the members who were waiting in the crib sheds. The workers decided to remain in the crib sheds.

[87]    At 6:19pm, I made a phone call to Niall Stenson (CoMade Electrical Project Manager). During the conversation words to the following effect were said:

I said: I am trying to put solutions to the company to get these guys back to work.

He said: We are on day labour. If they sit in again and don't get back to work, they are going to get sacked.

[88]    At 6:45pm, Nick, Greg (UGL Electrical Supervisor) and Beverly and Lindsay came into the crib room.

Nick said: You are not able to consult under a s.117 entry with the workers.

I said: Under s.118(1)(b) I am.

Greg (to the apprentices): You have to leave.

Me: Do apprentices not have the same rights under the WHS Act? This is a health and safety issue. Let us finish this and we will get back to you.

[89]    I then continued the meeting with the workers.

[90]    At 7:27pm Luke Green, night shift HSR, issued a provisional improvement notice to UGL for failing to provide emergency lighting in dedicated access and egress pathways. He handed that to Nick De Palma. Also present at that time were me, Dean Brazier, Joe [Uati] from the CFMEU, Adam Konstantinidis ([CEPU] Organiser), Lindsay Olsson and some other UGL Managers. Annexed and marked AB-12 is a copy of that PIN.

[91]    At around 7:35pm there was a further conversation in the crib sheds with the UGL managers. The same people were present as identified above, including Dean Brazier. Words to the following effect were said:

Joe [Uati]: We have consulted with the workers. The workers are ready, willing and able to do work in and around the crib areas.

Lindsay [Olsson]: We believe the site is safe. There will be no repercussions if you return to work, but if you don't, you will not be paid.

Joe: You haven't even addressed the concern or the request made by the workers.

Me: There is still work to be done in this area. They are ready willing and able to perform that work.

Lindsay: There is not sufficient work.

[92]    At around 8pm I left the site. Adam Konstantinidis remained on site. I was informed by Adam that night and verily believe that the workers remained in the crib shed for their whole shift and that workers were initially not allowed by UGL to sign off when they left site.

31    On 25 June 2024, Mr Bamford was at the project site, exercising his right of entry under s 117 of the WHS Act. He issued a right of entry notice, the relevant issues including electrical non-compliance, unsafe electrical installation, insufficient risk assessments, emergency lighting and rectification inspections.

32    In his first affidavit, Mr Shoemark gave the following account of his attending a safety walk on that day:

[172]    At approximately 7:50AM, my supervisor, Mr Thomas said to me words to the effect of:

“Do not attend the safety walk today. Management has told me you are not to attend the walk and you are to stay in the workgroup.”

[173]    At approximately 8:00AM, Mr Bamford, Mr Ramsay and Mr Johnny A attended my work area. Mr Bamford said to me words to the effect of:

“We want you to attend the safety walk”

[174]    I said to Mr Bamford words to the effect of:

“I cannot attend because my supervisor said I cannot.”

[175]    Mr Bamford then said to me words to the effect of:

“That is a breach of section 68 of the WHS Act.”

[176]    I said words to Mr Bamford the effect of:

“Ok. I will inform my supervisor.”

[177]    I then sent Mr Thomas a text message to inform that I would be attending the safety walk. A copy of this text message is annexed to this affidavit and marked “BS-12” [which expressly refers to s 68].

[178]    Mr Bamford, Mr Ramsay, Johnny A and Mr McCabe attended this walk.

[179]    That day:

(a)    I raised concerns about a generator that had unknown fluid leaking inside of it that I assumed to be diesel fuel (but was not sure at that point);

(b)    There was a switchboard that had its cover fallen of [sic], exposing live components. I told the Safety Committee that this was a significant safety risk;

(c)    Another issue with a generator with several issues including:

(i)    Leaking fluid;

(ii)    Incorrect circuit breakers that had been non-compliant for 12 months;

(iii)    Tags were out date; and

(iv)    There had been no daily prestart conducted on the device as was required.

33    The applicants contended during oral submissions that the instruction given by Mr Thomas, referred to at [172] in Mr Shoemark’s affidavit, constituted a breach of cl 58(f) of the Enterprise Agreement.

34    Mr Riddiford of UGL sent Mr Hitchens an email on 25 June 2024 at 4:13pm or 4:18 pm. This included:

Hi John,

As discussed today we are reducing numbers of approximately 25% of supplementary labour due to inefficiencies on site. Take this as notice and a contractual letter to follow.

Please not[e] we the below [sic] will no longer be required after close of business today.

Mick McKillop

Bibek Gurung

Dean Brazier

Dib El-Hassan

Bennett Shoemark

Michael Szustak

Zac Newnham

Thanks again for your continued support now and into the future.

35    On 25 June 2024, Mr Brazier was called to a meeting with Mr Hitchens. Mr Brazier gave evidence that Mr Hitchens said to him:

I’ve been in talks with UGL all day trying to keep CoMade on site, but their solution was to get rid of 25% of the workforce. I’ll get to the point, these five stay behind.

36    Mr Brazier says that Mr Hitchens then read a list of names, including his. Mr Brazier stated that when he asked Mr Hitchens “why his swing had been picked”, Mr Hitchens smirked and said “why do you reckon, Dean?” Mr Hitchens denied this conversation occurred or that he smirked.

37    Mr Hitchens stated in his affidavit:

[24]    On the evening of Tuesday 25 June 2024, I convened a site meeting of the CoMade night shift employees on the Project site including Mr Brazier, I addressed the employees, and:

(a)    said there had been a recent issue raised by UGL that workers of several companies (including CoMade) had been refusing to perform work on the project which they were directed to do (and which had been verified as being safe to perform);

(b)    said UGL had expressed clearly that it would not be paying workers who refused work in such circumstances and, indeed, there would be [sic]

(c)    said there may not be further work for CoMade employees to do on the Project should this practice continue; and

(d)    asked the employees to perform work on the Project which they were directed to do (and which had been verified as being safe to perform) to avoid any interruption to current staffing levels on the project;

(e)    said that UGL had decided to reduce our workforce by 25% and had told me which employees were to go.

[25]    At the end of the meeting I gave the termination letters to the 5 Redundant Employees on the evening shift, including Mr Brazier.

38    When Mr Shoemark attended his shift on 26 June 2024, he was taken by his supervisor to a meeting with Mr Hitchens. This occurred at around 6:30am. Mr Shoemark gave evidence that Mr Hitchens stated that UGL had asked CoMade to remove 25% of the workforce and handed Mr Shoemark a termination letter. The termination letter stated that Mr Shoemark’s position would be made “redundant”. Mr Shoemark stated that as he was leaving the room, Mr Stenson, a CoMade manager, told him:

UGL have given us a list of names of workers that have to be removed from the project.

39    Mr Bamford says that he was rung by Mr Hitchens at 6:50am, requesting a meeting on site. In his affidavit at [116], Mr Bamford stated:

At 8:40am I met with John Hitchens in the electrical project manager's office. There were two other directors from CoMade present - they introduced themselves as Jason Robinson and Chris Wright. The conversation then proceeded, which included words to the following effect:

[Ashley Bamford] AB: You never picked up the phone before today. Why have you sacked 7 members including the delo?

[John Hitchens] JH: We are in a tough spot. When we came up yesterday, UGL wanted everyone gone. We managed to get that back to 25 per cent of night shift and the two today. It was either those 7 or the other 27 as well. We also had 30 guys doing medicals to come and start at site, and they aren't coming anymore.

AB: I appreciate the position you are in, but this is your mess and what you do here is going to have broader ramifications beyond this site on an industry basis.

JH: I am trying to do the best I can, but I either do that or I lose the whole contract. I am trying to minimise the damage.

AB: The damage is already done. Sacking a delegate without the 10 days as per the EBA requirements is not something we are going to take lightly.

JH: You do what you've got to do. We need to keep talking and we can work this out. We will try and get work for Bennett and Dean in Sydney.

AB: That is all well and good but it doesn't fix the problems here.

JH: I have spoken to Fred [Barbin, CEPU Assistant Secretary], if you can talk to him and keep him calm, we can try and work something out.

AB: It is not me keeping Fred calm, it is the other way around you need to worry about. If you want to improve the relationship you can start by speaking to the managers here on site. Full credit to Niall [Stenson, CoMade Electrical Project Manager] he’s changed his tune recently and has been doing what he can to work with us. But for as long as Dave [Hill, CoMade Superintendent] is here, you are going to have problems.

JH: I will speak to him to get you to continue to work with you on this.

AB: For him to continue he would have to start in the first place. Are you going to reinstate Bennett and the others?

JH: We can't. It was UGL’s call. They gave us a list of names.

40    Mr Hitchens did not suggest in his affidavit that this account of what was said was inconsistent with his recollection.

41    Mr Hitchens’ evidence in his first affidavit included:

[14]    On 18 June 2024 I had a discussion with Mr. John Battaglia, the Construction Director of UGL at the Project, and on 24 June 2024, I had a discussion with Mr Sean Riddiford, the Construction Director of UGL at the Project, regarding the provision of services to the Project by CoMade. During these calls, Mr Battaglia and Mr Riddiford raised issues with productivity and CoMade personnel not working when safe to do so. They told me that they had intended to remove all CoMade workers as they refused to work when SafeWork NSW had advised that the project was safe.

[15]    In my discussion with Mr Riddiford to attempt to maintain the contract, I made an offer to remove overheads and margins for ‘non-productive days’ and this was agreed (see attached email). As a result of our conversations, UGL agreed to only remove 25% of the CoMade workforce but on the basis that UGL would determine which of our employees would not be further required by UGL.

[16]    At 4:13pm on 25 June 2024, I received an email from Mr Riddiford (the Email) to the effect that the following employees of CoMade were no longer required to work at the Project from close of business that day. A copy of that email is annexed and marked as “JH-1”:

Mick McKillop

Bibek Gurung

Dean Brazier

Dib El- Hassan

Bennett Shoemark

Michael Szustak

Zac Newnham

(the Redundant Employees).

[17]    At the time I received the Email, CoMade supplied the following employees on the Project:

(a)    10 employees on the night shift; and

(b)    18 employees on the day shift.

[18]    The effect of the Email was that UGL no longer required:

(a)    5 of the 10 night shift employees; and

(b)    2 of the 18-day shift employees.

42    Mr Hitchens stated that he decided that if CoMade could not deploy the employees to other roles, their employment would be terminated. Mr Hitchens then called Mr Wiltshire (CoMade’s Human Resources Manager) to inquire whether there were other roles to which the employees could be deployed.

43    Mr Wiltshire stated that he was called by Mr Hitchens on 24 June 2024, although I note that this date may be in error. Mr Wiltshire’s evidence included:

[16]    On the afternoon of 24 June 2024, I received a call from Mr Hitchens. He said to me that UGL had told him that it was reducing CoMade's workforce on the Project and had given him the names of employees that it no longer required. Mr Hitchens then told me the names of the employees, being:

Mick McKillop

Bibek Gurung

Dean Brazier

Dib El- Hassan

Bennett Shoemark

Michael Szuslak

Zac Newnham

(the Redundant Employees).

[17]    Mr Hitchens then asked me if we had any roles in New South Wales which we could redeploy any of the Redundant Employees to. I then looked at the Recruitment Dashboard which is part of the human resources software system that CoMade uses. The Recruitment Dashboard shows what current vacancies CoMade has. I saw that we did not have any vacancies for licensed electricians and told Mr Hitchens this.

[18]    Mr Hitchens then said that we would have to make them redundant and directed me to prepare letters terminating their employment in accordance with the Enterprise Agreement.

[19]    I then prepared the termination letters and provided them to Kristina Kansakar, Recruitment Mobilisation Lead at CoMade, to send to Mr Hitchens.

…

[26]    Prior to the discussion which I had with Mr Hitchens at paragraph 16 above I had not had any discussion with him regarding the termination or possible termination of the employment of Mr Shoemark or Mr Brazier.

THE AMENDED ORIGINATING APPLICATION

44    On 5 July 2024, the applicants filed an amended originating application alleging contraventions of ss 50, 340 and 346 of the FWA. This contained the same claim for interlocutory relief as was contained in the originating application. The applicants alleged that the terminations were contrary to the FWA in that they were:

(1)    carried out in contravention of provisions of the Enterprise Agreement, breaching s 50 of the FWA; and/or

(2)    carried out contrary to the general protections in Part 3-1 of the FWA, namely the protections in ss 340 and 346 of the FWA.

Section 50 of the FWA

45    Sections 50 of the FWA provides:

50    Contravening an enterprise agreement

A person must not contravene a term of an enterprise agreement.

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

Note 2:     A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).

46    In respect of s 50 of the FWA, the applicants rely on clauses 58(i) and 73(e), (f) and (g) of the Enterprise Agreement:

58(i)

The HSR shall not be transferred from site without agreement from the majority of employees on that site at a duly convened paid meeting of no more than 30 minutes and agreed to by the Union in writing.

73(e), (f) and (g)

e)    The Company shall not relocate an elected Union delegate from a site/project or division without prior consultation with the affected delegate and the parties to this agreement. In cases where the Company is considering terminating or transferring the services of an elected Union delegate, the Company must engage in a ten-day consultation period with the affected Employee prior to making a decision.

f)    Once the ten-day consultation period has finished, the Union delegate shall not be transferred from site/project or division without agreement from the majority of employees on that site/project or division at a duly convened paid meeting of no more than 30 minutes and agreed to by the Union in writing.

g)    The Union delegate can only be relocated after the Union agrees in writing.

47    The applicants submitted that no meeting of the type contemplated in cl 58 of the Enterprise Agreement was held before Mr Shoemark’s and Mr Brazier’s termination. The applicants submitted that “transferred” means transferred from the site by their terminations, or alternatively by their immediate removal from the project. The respondents submitted that:

(a)    a termination of employment is not a transfer, because implicit in the concept of a transfer is that the employee remains in employment but is moved to another role; and

(b)    this is recognised by the drafting of cl 73(f) of the Enterprise Agreement which refers to the situation where CoMade is “considering terminating or transferring the services of an elected Union delegate” (respondents’ emphasis added).

48    As to cl 73, the applicants submitted that no ten-day consultation period of the type contemplated in cl 73(e) of the Enterprise Agreement was held before Mr Shoemark’s termination, nor was there any meeting as contemplated in cl 73(f) or any written agreement as contemplated by cl 73(g).

49    The respondents accepted that there was a serious question to be tried as to whether CoMade complied with its obligation under cl 73(e) of the Enterprise Agreement to consult regarding the termination of Mr Shoemark’s employment.

50    The respondents did not accept that there was a serious question to be tried as to whether CoMade otherwise complied with its obligations under cl 58(i), 73(e), (f) and (g) of the Enterprise Agreement to consult regarding the termination of the employment of Mr Shoemark and Mr Brazier.

Sections 340 and 346 of the FWA

51    Section 340 of the FWA 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).

52    Section 346 of the FWA 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).

53    In respect of ss 340 and 346, the applicants submitted that termination (or dismissal) is a type of adverse action under s 342 of the FWA, and that the dismissals were contrary to s 340 of the FWA as adverse action was taken against them either because they had exercised workplace rights (s 340(1)(a)(ii)) or to prevent the further exercise of those rights (s 340(1)(b)), being:

(a)    the exercise of responsibility under the WHS Act and Enterprise Agreement as an HSR, by participating in safety walks, investigating safety issues and making representations about those issues: s 341(1)(a); and

(b)    the making of complaints in relation to their employment, being complaints about safety issues: s 341(1)(c)(ii).

54    Further, the applicants allege that the dismissal of Mr Shoemark was contrary to the protections in ss 346(a) and (b), being adverse action taken because he was a CEPU delegate.

55    The respondents accepted that there was a serious question to be tried as to whether:

(a)    CoMade took adverse action against Mr Shoemark and Mr Brazier; and

(b)    Mr Shoemark and Mr Brazier had or exercised the contended workplace rights.

56    However, the respondents did not accept or agree that there was a serious issue to be tried as to whether CoMade took adverse action “because” (see ss 340 and 346, read with s 360 of the FWA) Mr Shoemark and Mr Brazier had or exercised workplace rights.

RELEVANT PRINCIPLES FOR INTERLOCUTORY RELIEF

57    There are two main inquiries involved in determining whether to grant interlocutory relief. As explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [65] (and see also at [19] per Gleeson CJ and Crennan J), those main inquiries are whether:

(1)    the applicant has a prima facie case in the sense of a sufficient likelihood of success to justify the granting of the interlocutory relief which is sought; and

(2)    the inconvenience or injury the applicant would be likely to suffer if an injunction were refused outweighs the injury the respondent would suffer if the injunction were granted.

58    In Warner-Lambert Co LLC v Apotex Pty Ltd [2014] FCAFC 59; 106 IPR 218 at [70], the Full Court (Allsop CJ, Jagot and Nicholas JJ) stated:

Whether an applicant for an interlocutory injunction has made out a prima facie case and whether the balance of convenience favours the grant of such relief are related questions. It will often be necessary to give close attention to the strength of a party’s case when assessing the risk of doing an injustice to either party by the granting or withholding of interlocutory relief especially if the outcome of the interlocutory application is likely to have the practical effect of determining the substance of the matter in issue or if other remedies, including an award of damages, or an award of compensation pursuant to the usual undertaking, are likely to be inadequate. 

59    As noted in the first sentence of that passage, the two main inquiries cannot be conducted independently of each other. This is because “an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even” and “[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” – see: Bullock v Federated Furnishing Trades Society of Australasia (No 1) [1985] FCA 258; 5 FCR 464 at 472 per Woodward J (Smithers and Sweeney JJ agreeing at 467 and 469 respectively); GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 102; 305 ALR 363 at [81(j)] (Bennett, Jagot and Griffiths JJ).

60    In assessing the balance of convenience, the Court should assess and compare the prejudice and hardship likely to be suffered by the respondent, third parties and the public generally if an injunction is granted, with that which is likely to be suffered by the applicant if no injunction is granted: GlaxoSmithKline at [81] (Bennett, Jagot and Griffiths JJ); see also Samsung Electronics Co v Apple Inc [2011] FCAFC 156; 217 FCR 238 at [55], [62] and [66] (Dowsett, Foster and Yates JJ). The question of whether damages will be an adequate remedy will ordinarily be considered as part of the balance of convenience: Samsung Electronics at [61].

61    One further matter should be noted about the inquiry into whether there is a serious question to be tried. The applicants submitted that the Court should have regard to s 361 of the FWA, notwithstanding s 361(2), referring to the decision of Ryan J in Police Federation of Australia v Nixon [2008] FCA 467; 168 FCR 340 at [69].

62    Section 361 provides:

Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)    Subsection (1) does not apply in relation to orders for an interim injunction.

63    In Nixon at [69], Ryan J – speaking of a predecessor provision – stated that he did not construe the section as “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”. His Honour considered “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”. The views of Ryan J have been applied in many decisions.

64    In Transport Workers’ Union of Australia v Qantas Airways Limited (No 4) [2021] FCA 1602; 398 ALR 124 at [120], Lee J noted that the law in this respect had become “somewhat unsettled”. The views expressed by Ryan J were doubted by Snaden J in Australian Workers’ Union v Chemring Australia Pty Ltd [2019] FCA 750; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v O-I Operations (Australia) Pty Ltd [2019] FCA 1272 at [48] – [53] and Dixon v United Workers Union [2023] FCA 1526 at [73]. In Trego v Wesbeam Pty Ltd [2019] FCA 1030 at [64], Mortimer J referred to competing views and determined the application without taking s 361(1) into account. I will return to this issue later.

CONSIDERATION

65    Recognising that the two main inquiries are inter-related, they are nevertheless addressed separately below for convenience.

Prima facie case

Section 50

66    The applicants contended that the Court would be satisfied that there is a serious question to be tried that there were contraventions of the Enterprise Agreement given:

(a)    what at face value appears to be an inarguable case of contravention of cl 73 of the Enterprise Agreement by Mr Shoemark’s termination; and

(b)    the absence of consultation required under cl 58 or cl 77 of the Enterprise Agreement in respect of either dismissal.

67    As noted earlier, the respondents accepted that there was a serious question to be tried as to whether CoMade complied with its obligation under cl 73(e) of the Enterprise Agreement to consult regarding the termination of Mr Shoemark’s employment.

68    The question of whether cl 58 applies to the situation of an employee’s employment being terminated rather than an employee being transferred involves a question of construction. The applicants’ case in this respect is arguable, as are the arguments put against them.

Section 340 and 346

69    The applicants contended that the Court would be satisfied that there is a serious question to be tried that there were contraventions of Part 3-1 of the FWA given:

(a)    the history of exercises of workplace rights by Mr Shoemark and Mr Brazier in their roles as HSRs during a period when there were safety concerns on site, including numerous concerns addressed by the regulator, SafeWork NSW, by the issuing of improvement notices;

(b)    the coincidence of timing between the exercise of workplace rights and the dismissals;

(c)    the likelihood that the exercise of workplace rights caused CoMade and/or UGL to have to take steps to remedy aspects of their safety performance;

(d)    CoMade’s haste to dismiss Mr Shoemark and Mr Brazier without undertaking the consultation required under cl 77 of the Enterprise Agreement;

(e)    CoMade’s failure to undertake the ten-day consultation period required under cl 73 of the Enterprise Agreement; and

(f)    the inconsistency between Mr Stenson’s claim that UGL had provided a “list of names”, and the purported reason for the termination stated in the letter, being redundancy.

70    The respondents submitted that the reasons for the termination were plainly set out in Mr Hitchen’s affidavit, namely:

(a)    Mr Shoemark and Mr Brazier were engaged by CoMade on the project of which UGL was the principal;

(b)    UGL notified CoMade that UGL no longer required the services of Mr Shoemark and Mr Brazier and five other employees;

(c)    CoMade did not have other work which Mr Shoemark and Mr Brazier could perform on the project and did not have any other roles in New South Wales to which they could be deployed;

(d)    as a consequence, Mr Hitchens acted to terminate the employment of Mr Shoemark and Mr Brazier and the five other employees; and

(e)    Mr Hitchens was the sole decisionmaker with respect to the decision to terminate the employment of Mr Shoemark and Mr Brazier and the five other employees.

71    The respondents submitted that this was corroborated by the evidence of Mr Wiltshire and is supported by other contemporaneous evidence, referring to the email from Mr Riddiford to Mr Hitchens, dated 25 June 2024 to which I have earlier referred.

72    The respondents also referred to the following context in which that decision was made:

(a)    the employment of five employees other than Mr Shoemark and Mr Brazier was terminated in the same circumstances;

(b)    Mr Hitchens had not been contemplating terminating the employment of either Mr Shoemark or Mr Brazier;

(c)    the evidence regarding Mr Shoemark is particularly illuminating, he:

(i)    had been employed by CoMade at three previous projects;

(ii)    was a delegate at each of these projects; and

(iii)    became an employee at the Hunter Power Project after CoMade had approached him; and

(d)    it is commonplace for union delegates and HSRs to raise issues regarding workplace safety and other matters.

73    The respondents submitted that the effective decision to terminate the engagement or employment of Mr Shoemark and Mr Brazier was made by UGL. The decision frustrated the respective employment contracts between CoMade and Mr Shoemark and Mr Brazier. The action of CoMade in terminating the employment was simply the inevitable recognition and implementation of what it was instructed to do by UGL.

74    The applicants’ submission that there is an “inconsistency between Mr Stenson’s claim that UGL had provided a ‘list of names’, and the purported reason for the termination stated in the letter, being redundancy”, highlights one of the principal issues between the parties. There is a strong case on the evidence as it presently stands that UGL identified the relevant seven employees it no longer wished to work on the project on the basis of the actions those CoMade employees had taken in relation to perceived or actual safety issues. If the employees had been employees of UGL, they were not redundant: the evidence presently suggests that UGL wanted more electricians on the project at the time and that there was at least 12 months of electrical work still required on the project. However, UGL’s actions are not the direct subject of the claims, albeit its actions are relevant to the claims brought against CoMade. On the evidence as it presently stands, UGL no longer wanted the seven employees to be involved in the project (because of their conduct) and required CoMade to remove them from the project. On CoMade’s evidence, because it could not redeploy the employees to other projects, the employees were redundant. On CoMade’s evidence, it took the action it did solely because it was effectively required to do so by UGL.

75    The question is not whether there is a serious question to be tried if Mr Shoemark and Mr Brazier had been employees of UGL. It is whether there is a serious question to be tried in relation to the claims made against CoMade. I proceed on the basis that there is a serious question to be tried, recognising that the statutory question is whether the relevant action occurred “because” of the matters referred to in ss 340 and 346 and the determination of the statutory question may not be as simple as CoMade submits, but there are significant arguments which the applicants face against the position which they put. The applicants’ case faces these significant arguments whichever construction of s 361(2) of the FWA is correct. It is therefore not necessary to express any view about which construction should be preferred.

Balance of convenience

Submissions

76    The applicants submitted:

(a)    it is self-evident that the terminations will cause financial and other detriment to Mr Shoemark and Mr Brazier;

(b)    Mr Shoemark and Mr Brazier were reliant on their jobs for their incomes of a little over $2,000 gross per week;

(c)    Mr Brazier has a dependent daughter and is renting his home with his wife;

(d)    Mr Shoemark is also renting his home and has recently entered into a new lease on his home, and will incur a significant fee if he has to break that lease;

(e)    the failure to return Mr Shoemark and Mr Brazier to duty at the project will deprive the CEPU and its members of their services as HSRs.

77    The respondents submitted that damages are an adequate remedy and that the balance of convenience favours CoMade. The respondents submitted:

(a)    Mr Shoemark and Mr Brazier cannot be usefully engaged at the project;

(b)    CoMade does not have any vacant positions available in NSW, noting that Mr Shoemark and Mr Brazier are seeking reinstatement to their roles at the project;

(c)    accordingly, if Mr Shoemark and Mr Brazier were reinstated, they would be “supernumeraries” and CoMade would not be able to recover the costs of engaging them and would not make a profit from engaging them;

(d)    there would also be the issue as to whether CoMade could comply with such an order in that, if such an order required CoMade to provide Mr Shoemark and Mr Brazier with work on the project, it is not in a position to do so;

(e)    in such circumstances, Mr Shoemark and Mr Brazier would not be enjoying any of the non-monetary benefits of employment and “would be idle”, referring to Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 971; 212 IR 306 at [28]-[29] (Logan J).

78    The respondents also submitted that the orders sought by the applicants would prohibit CoMade from terminating the employment of Mr Shoemark and Mr Brazier for any reason. Accordingly, if either of them engaged in serious misconduct or CoMade’s contract at the project was terminated, CoMade would be unable to terminate the employment of Mr Shoemark and Mr Brazier. In my view, these issues are ones which could be addressed by appropriate drafting of orders if interlocutory relief is otherwise appropriate.

Consideration

79    Mr Shoemark is single, lives by himself and has no dependents. Mr Shoemark does not own real property and rents his home. He recently signed a new 12 month lease and will incur a fee of about $3,292 if he breaks the lease. He has no current employment or income and has sufficient savings to cover his rent and living expenses for about ten weeks as at the date of Mr Grellman’s affidavit.

80    Mr Shoemark commenced employment with CoMade in February 2023 to work on the Rozelle Interchange project. He was elected delegate for the CEPU on that project. He was made redundant in relation to that project, finishing on 22 November 2023.

81    Mr Shoemark was contacted by Mr Wiltshire in relation to the Hunter Power Project in early March 2024. Mr Shoemark was then completing an Advanced Diploma in Cyber Security at Ultimo TAFE and considered he might not be able to start on the project for a month. Ultimately, Mr Shoemark decided to defer his studies. He signed his employment contract on 19 March 2024.

82    So far as the evidence reveals, Mr Shoemark was performing contract work as an electrician on a project-by-project basis. He worked for CoMade from February 2023 to November 2023 on the Rozelle Interchange project and then from March 2024 on the Hunter Power Project until his termination. The evidence does not reveal what employment he had, if any, between November 2023 and March 2024.

83    Mr Shoemark stated in his second affidavit that he had “sounded out others in the industry about employment prospects”. He did not seek to suggest that there were no or few opportunities, or that he would have difficulties in obtaining employment whether or not of equivalent status or value to that which he had with CoMade. This is significant. First, if Mr Shoemark’s inquiries had resulted in a response that employment prospects were difficult, then that evidence is likely to have been given – see: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [63]. Secondly, in his second affidavit, Mr Shoemark was in part responding to the affidavit of Mr Wiltshire. Mr Wiltshire had stated in his affidavit:

[28]    From my experience with CoMade and in the construction industry I am aware that there is a consistently high demand for licenced electricians in New South Wales. On 12 July 2024, I accessed the website for Seek which is a website which employers, including CoMade, use to advertise job vacancies.

[29]    I then did searches for the following:

a.     "Electricians" in "Newcastle, Maitland & Hunter NSW". I saw that there were 690 jobs advertised. Annexed hereto and marked "DW-3" is a print-out of the first page of that search result, showing the search terms and number of jobs available; and

b.     "Electricians" in "All Sydney NSW'. I saw that there were 2,744 jobs advertised. Annexed hereto and marked "DW-4" is a print-out of the first page of that search result, showing the search terms and number of jobs available.

84    The applicants submitted that it is not surprising that the evidence does not address actual attempts to obtain alternative employment in circumstances where this interlocutory relief was being sought. I accept that submission. However, the point is that there is no reason on the evidence before the Court to think that there will be any substantial or real difficulty in quickly obtaining gainful employment in an industry which appears to have plenty of available work. I do not place any significance on the absence of evidence of an attempt to secure alternative employment. The point is simply that the evidence suggests that much appropriate employment is available and Mr Shoemark does not suggest his inquiries yielded a different answer.

85    The evidence favours a conclusion that Mr Shoemark will not encounter significant difficulty obtaining employment as an electrician commensurate with his qualifications.

86    Mr Brazier is 52 and has worked as a licensed electrician for around 30 years. Mr Brazier’s curriculum vitae shows that he was: self-employed from 2001 to 2009; employed from 2009 to 2015 at KRS Electrical and FDC Technologies; the owner and director of KSD Electrical from 2015 to 2019; engaged with Evolution Fire Protection from 2019 to 2022; contracted on the Westconnex tunnel project from May 2022 to December 2022.

87    Mr Brazier was employed by CoMade as an electrician from around June 2023 to November 2023, working on the Rozelle Interchange project. He was made redundant when the work CoMade had been contracted to carry out had completed. He recommenced employment with CoMade on 26 March 2024 on the Hunter Power Project.

88    Mr Brazier is married with four children, one of whom is supported financially by Mr Brazier and his wife, and who remains at home with them. They currently rent their home, but are looking to purchase a new home having sold a townhouse two years ago. Mr Brazier considers that it will be difficult for him and his wife to secure a loan now that he has been terminated. His evidence is that he will need to draw on savings if he does not obtain employment soon. Mr Brazier does not suggest that he will have any difficulties in obtaining employment or furnish any evidence as to why that might be the case. In light of Mr Wiltshire’s evidence, and Mr Brazier’s qualifications and experience, the evidence favours a conclusion that Mr Brazier will not have significant difficulty obtaining employment as an electrician commensurate with his qualifications.

89    It follows that I do not consider that Mr Shoemark or Mr Brazier are likely to suffer financial detriment in the long term, or that their living arrangements are likely to need to be altered or, in the case of Mr Brazier, that his efforts to purchase a new home with his wife are likely to be significantly disrupted. I recognise that the seeking of this interlocutory relief may have delayed the obtaining of new employment.

90    I accept that Mr Shoemark and Mr Brazier played an important role in maintaining the safety of the Hunter Power Project site. The applicant submitted that this is important given that the site is a high risk one and that there have been numerous health and safety issues at the site over the past year and in the past month. The applicant submitted that there is now only one HSR left on day shift for 100 workers, and one on night shift for 30 workers and that the latter has indicated his intention to step down.

91    I do not consider this factor of particular significance to the question of balance of convenience in the circumstances of this case. I accept that: (a) given the proximity of the terminations to the events described earlier, and leaving aside whether the two are in fact related, it might be that Mr Shoemark and Mr Brazier’s dismissals may discourage employees working on the Hunter Power Project site from raising safety concerns or taking up positions as an HSR; and (b) if Mr Shoemark and Mr Brazier were reinstated and returned to the Hunter Power Project, then the HSR position might benefit. However, the Court cannot, on this application, make orders which would have the effect of securing the result that Mr Shoemark and Mr Brazier could work on the Hunter Power Project at the site. UGL is not a party and has not been heard in relation to the relief sought.

92    The applicants stressed that Mr Riddiford’s email of 25 June 2024 stated that the identified individuals were no longer “required” and that UGL should not be understood as not wanting them on site. This construction of the email, read in isolation, is strictly available, but the surrounding circumstances indicate that the individuals were no longer wanted on the site by UGL.

93    The applicants also emphasised that UGL had not furnished evidence to the effect that it would not permit Mr Shoemark and Mr Brazier to return to the project. The applicants also submitted that there was no evidence that CoMade had made any inquiry of UGL about their attitude in this regard. I do not consider the absence of evidence from UGL significant in the circumstances, including that it has not been joined to the proceeding. Its position, only a few weeks ago, was tolerably clear. There is nothing to suggest that its position is likely to have changed.

94    The applicants submitted that the Court might conclude that UGL would permit Mr Shoemark and Mr Brazier to return to the project if the Court so ordered. As I have said, the Court cannot properly make an order which would have the effect of requiring UGL to permit Mr Shoemark and Mr Brazier to return on site without first hearing from UGL.

95    There is no real cause to doubt the evidence of Mr Wiltshire (and Mr Hitchens) that CoMade could not redeploy Mr Shoemark and Mr Brazier at the time of the terminations. Even if that position has changed or is likely soon to change, and there must be some real possibility of this given that commercial opportunities must regularly arise, I do not consider that this would favour an order requiring CoMade to treat the terminations as invalid in the circumstances.

96    On the evidence, CoMade would need a new project, or capacity within an existing project, to utilise the services of Mr Shoemark and Mr Brazier. If this could not be achieved, then CoMade would incur a liability for wages resulting in losses it would not ordinarily incur. This would not be a situation of CoMade choosing not to give Mr Shoemark and Mr Brazier work, but a situation of CoMade being unable to deploy Mr Shoemark and Mr Brazier to work in the usual way that CoMade’s business model operates. If work was not available, then the added benefits which useful employment generally brings, including a sense of worth and contribution to community, would not be gained. There is no reason to think that Mr Shoemark and Mr Brazier are not more likely to obtain employment outside of CoMade in light of Mr Wiltshire’s evidence.

97    The applicants submitted that an order for reinstatement would be the ordinary final relief in a s 346 case, referring to Construction, Forestry, Mining and Energy Union v BHP Coal (No 3) [2012] FCA 1218; 228 IR 195 at [125] (Jessup J) and referred to a series of cases in which orders for reinstatement have been made on an interlocutory basis in matters involving claimed contraventions of the general protections in the FWA. It is not clear that reinstatement would be the likely final relief in the particular circumstances of this case. The applicants seek an order that CoMade “reinstate the second and third applicants to the employment and the positions they held at the Project with the first respondent as at 24 June 2024”. To the extent CoMade could do this, there is nothing in the evidence to suggest that CoMade could require UGL to accept that Mr Shoemark and Mr Brazier be permitted to perform the relevant work on the Hunter Power Project site. Further, the appropriate relief at final hearing would involve a consideration of whether CoMade had completed its contract with UGL by the time the proceedings were determined.

98    In considering the balance of convenience, I should make clear that I have taken into account the fact that the CEPU proffered the usual undertaking as to damages.

CONCLUSION

99    I accept that the applicants have established a prima facie case but conclude that the balance of convenience favours refusing the interlocutory relief sought. For these reasons, the claim for interlocutory relief will be dismissed.

Associate:

Dated:    22 July 2024