Federal Court of Australia

Construction, Forestry and Maritime Employees Union v Programmed Industrial Maintenance Pty Ltd [2025] FCA 257

ORDERS

UPON THE FIRST APPLICANT UNDERTAKING TO:

(a)    submit to such order (if any) as the Court may consider to be just for the payment of compensation, (to be assessed by the Court or as it may direct), to any person, (whether or not a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking;

(b)    pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking.

THE COURT ORDERS THAT:

1.    Until the hearing and determination of this application, or further order, the Respondent reinstate the Second Applicant to the position and the duties of the employment the Second Applicant had with the Respondent immediately prior to its termination on 15 January 2025, provided that, for the purposes of the probation period that applied to the Second Applicant under the terms of his employment, the Respondent shall not be required to treat the period of employment the Second Applicant serves pursuant to this order as satisfying the qualifying period of the probation term.

2.    There be liberty to apply on short notice.

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

REASONS FOR JUDGMENT

MEAGHER J

INTRODUCTION

1    In this matter the first applicant, the Construction, Forestry and Maritime Employees Union (CFMEU or the union), and the second applicant, Mr Sam Mooney, sought interlocutory relief against the respondent, Programmed Industrial Maintenance Pty Ltd (PIM), as per ss 545(1) and (2)(a) of the Fair Work Act 2009 (Cth) (FWA) and/or s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA). The applicants sought an interim injunction reinstating the second applicant until the hearing and determination of the application.

2    At the hearing, the applicants provided amended draft terms of the interlocutory injunction as follows:

1.    Until the hearing and determination of this application, or further order, the Respondent reinstate the Second Applicant to the position and the duties of the employment the Second Applicant had with the Respondent immediately prior to its termination on 15 January 2025, provided that, for the purposes of the probation period that applied to the Second Applicant under the terms of his employment, the Respondent shall not be required to treat the period of employment the Second Applicant serves pursuant to this order as satisfying the qualifying period of the probation term.

3    In the substantive application, the applicants seek declarations pursuant to s 21 of the FCA for alleged contraventions of ss 340 and 346 of the FWA. The applicants also seek orders pursuant to s 545 of the FWA and/or s 23 of the FCA for reinstatement of the second applicant. Under ss 545 and 547 of the FWA, the applicants sought orders for compensation and interest, respectively. Further, the applicants sought orders as per s 546 of the FWA for the respondent to pay penalties for its alleged contraventions of ss 340(1)(a) and (b) of the FWA to the first applicant, as well as such further or other orders deemed appropriate by the Court.

4    This matter came before me as the duty judge on 24 February 2025. On 5 March 2025 I made orders in accordance with the interlocutory orders ultimately sought and indicated that I would deliver my reasons as soon as possible. These are they.

evidence

5    For the purpose of this application, the applicants relied on two affidavits of Mr David Vroland, affirmed respectively on 13 February 2025 (Mr Vroland’s first affidavit) and 22 February 2025 (Mr Vroland’s second affidavit). Mr Vroland is the Head of Legal for the CFMEU Construction and General Division Victoria – Tasmania Branch.

6    The respondent relied on an amended affidavit of Mr Jordan Hardinge, affirmed 20 February 2025, subject to the resolution of objections to the admissibility of evidence contained at [25] and the second sentence at [26] of that affidavit. Mr Hardinge is a Senior Associate at Herbet Smith Freehills, the solicitors for the respondent.

7    The factual background is drawn from those parts of the affidavits that were, for the purpose of this application, not in dispute.

8    Since 26 August 2024, PIM has had a commercial contract with AGL Energy Ltd (AGL) at its Loy Yang Mine (the mine), by which it is contractually obliged to provide to AGL preventative and immediate response maintenance to critical infrastructure equipment and machinery. PIM replaced two companies, Belle Banne Conveyor Services Pty Ltd (Belle Banne) and Foundation Civil Mining Pty Ltd, and made offers of employment to employees of the two companies, who were already working at the mine.

9    Between July 2023 and August 2024, Mr Mooney was an employee of Belle Banne, occupying the role of an Intermediate Rigger/Scaffolder. From 26 August 2024, he occupied a similar role at PIM. The role at PIM was full-time, subject to a qualifying period of six months as per the written contract of employment.

10    Mr Mooney’s employment contract referred to the Programmed Industrial Maintenance Pty Ltd – Latrobe Valley Power Stations and Mines (AMWU & CFMEU) – Enterprise Agreement 2024 (PIM Agreement). The PIM Agreement covered and applied to PIM, the CFMEU and Mr Mooney in his employment. Mr Mooney was elected as a Health and Safety Representative (HSR) on 2 September 2024 for a designated work group (DWG) in accordance with s 54(1) of the Occupational Health and Safety Act 2004 (Vic) (OH&S Act). On the same day, Mr Mooney was appointed by the CFMEU as a delegate for the employment worksite. For the DWG, Mr Mooney was the only HSR with CFMEU membership.

11    Between early September 2024 and December 2024, Mr Mooney made a series of safety complaints, which are summarised in Mr Vroland’s first affidavit at [46]. The making of the safety complaints as described was uncontested by the respondent for the purpose of the interlocutory application. Relevantly, the safety complaints were:

(a) the Welding Fumes Complaint;

(b) the Fire Warden Complaint;

(c) the Emergency Evacuation Complaint;

(d) the Scaffold Harness Complaint;

(e) the Working at Heights Complaint;

(f) the First Aid Training Complaint;

(g) the Fatigue Management Complaint;

(h) the Silica Dust Exposure Complaint; and

(i) the Exclusion from AGL Safety Meetings complaint

…

12    These complaints were made to managers, supervisors and other relevant employees of PIM, often on multiple occasions. Some of them were also brought to the attention of the CFMEU Organiser, Mr Brendan Mizzi, or another CFMEU delegate, Mr Robert Bruzzese.

13    Mr Mooney took annual leave between 11 December 2024 and 14 January 2025. On 14 January 2025, he received a letter from Mr Nicholas Mastilovich, the Victorian Regional Manager for PIM at the mine. The letter required Mr Mooney to attend a meeting at the Loy Yang A Learning Centre Auditorium on 15 January 2025 regarding his employment. The letter also informed Mr Mooney that he was required to not attend work that day.

14    Mr Mooney attended the meeting on 15 January 2025, with Mr Mizzi and Mr John Webb (an AMWU organiser). Mr Mastilovich conducted the meeting for PIM, with Mr Daniel Zammit, another PIM manager. Mr Mastilovich informed Mr Mooney that his employment would be terminated immediately, as he had failed to satisfy the qualifying period under his contract with PIM. Mr Mooney then received a letter which terminated his employment with PIM. No concerns about his performance had been raised with Mr Mooney prior to the meeting on 15 January 2025, although he and the CFMEU were subsequently advised by PIM that his dismissal was due to his attitude, lack of initiative and poor time management.

contested evidence

15    The evidence set out below relates to the factual matters in dispute between the parties.

Mr Vroland’s First Affidavit

16    In the first affidavit, Mr Vroland deposed that he was informed of certain matters by Mr Mooney, Mr Mizzi, Mr Mark Bruzesse and Mr Robert Bruzesse. For the purposes of clarity, I will refer to each Mr Bruzzese by his first name also.

17    Mr Mooney informed Mr Vroland as follows:

    “[H]e was experienced as an Health and Safety Representative (HSR)” due to holding that position with around 10 other companies before PIM.

     He was “an active HSR” who had “made a number of work safety complaints” and “had read the PIM Agreement” and strove to enact clause 24.1 of the PIM Agreement, which expressed a goal of “a totally injury free workplace”. When he was making the complaints, “he believed that he was acting in his capacity as an HSR and in the belief that he was protecting the safety of himself and his co-workers at the Loy Yang mine site” as well as “acting as a CFMEU delegate” seeking to protect “the safety of CFMEU members as he was the only CFMEU HSR employed by Programmed”.

    In or around early December 2024, at a pre-start meeting, Mr McLure informed the PIM workforce that performance reviews would be conducted by PIM.

    On 6 December 2024, Mr Mooney attended a performance review with Mr Mastilovich at his office. The meeting was originally intended to address the performance of Mr Mark Bruzzese, another PIM employee. Mr Mark Bruzzese requested that Mr Mooney join him as “his support person and CFMEU representative” at the meeting. When Mr Mooney and Mr Mark Bruzzese arrived, they agreed to undertake their performance reviews together with Mr Mastilovich.

    Mr Mooney asked Mr Mastilovich whether he “had anything to say about his performance” and Mr Mastilovich responded to the effect that “there are ‘no issues about either of you from the floor’”.

    The balance of the discussion was “very positive and focussed on the potential for general productivity improvement opportunities” for PIM.

    At the meeting on 15 January 2025, Mr Mooney and Mr Mizzi asked for further reasons as to why Mr Mooney failed to satisfy the qualifying period in his contract with PIM. Mr Mastilovich refused to provide any such reasons, as a result of which Mr Mizzi advised that they intended to “put this into dispute” because no “valid reason” had been given for dismissing Mr Mooney and because “he's an HSR.”.

    Mr Mooney owns two properties and pays two mortgages. He is no longer contemplating improving one of the properties to add a second dwelling house, and he is also now considering selling one of the properties to provide “financial security”.

    As a result of his dismissal, he has been deprived of the “enjoyment” and “satisfaction” he derived from his employment and has been made to feel uncomfortable and humiliated in his hometown.

    Further, he considers that people are uncertain as to whether to raise his dismissal when talking to him.

    Mr Mooney “hates the fact” that he was not afforded an opportunity to respond to the allegations about his unsatisfactory performance. The dismissal caused him to feel “depressed” and to lose his “trust in people”. It has contributed to his overall low mood.

    The dismissal has also caused personal stress for him and his wife, who were “trying to conceive via IVF treatment”.

18    Mr Mizzi informed Mr Vroland as follows:

    On 17 January 2025, an Australian Manufacturing Workers’ Union (AMWU) organiser, Mr Colin McGennisken, attended the mine worksite to investigate concerns over PIM’s “emergency response procedures and protocols”.

    On 21 January 2025, Mr Mizzi and Mr Martin Murphy, another CFMEU organiser, attended the mine worksite to investigate “a suspected contravention of the OHS Act relating to the unsafe use of plant and equipment specifically concerns relating to the use of a mobile crane and associated rigging equipment on the site”.

    During both investigations there were delays in admitting the relevant persons to the worksite.

    He has been unable to find a replacement for Mr Mooney’s role as a HSR, despite making “several attempts” to do so.

19    Mr Vroland was also informed by Mr Mooney, Mr Mark Bruzzese and Mr Mizzi that HSR work required “amongst other things, specialised knowledge of the power industry as well as specialist rigging, scaffolding and crane operation knowledge and experience”.

20    Mr Vroland was further informed by Mr Robert Bruzzese that HSR elections were undertaken on 7 February 2025, but there were no nominations and none of the “5 vacant HSR positions” were filled.

21    On 5 February 2025, Mr Vroland “filed a ‘Form F8 – General protections application involving dismissal’ in the Fair Work Commission” on Mr Mooney’s behalf, under s 365 of the FWA alleging contraventions of ss 340(1)(a) and (b) of the FWA. The application was subsequently withdrawn and discontinued.

22    Mr Vroland provided evidence of employees who were dismissed by PIM on 15 January 2025, who were AMWU members. Mr Vroland deposed that he received this information via email from Mr Stephen Fodrocy, an industrial officer for the AMWU.

Affidavit of Mr Hardinge

23    Mr Hardinge deposed that he was informed of certain matters by Mr Mastilovich, Mr McLure, Mr Zoetbrood and Mr Farrant. Mr Mastilovich informed him that:

•    PIM placed “all Employees who were engaged on a permanent ongoing basis (subject to probation)” on a six-month probationary period. This was the “usual” period that PIM used for new employees, “as this aligns with the minimum employment period required to be protected by unfair dismissal laws” as per the FWA.

•    PIM used the six-month probationary period to assess employees’ “performance, and to determine whether they are a good fit for the business moving forward”. If an employee did not perform satisfactorily, PIM decided to “terminate their employment”.

•     PIM undertook a mid-probation performance review of “all permanent ongoing Employees’ performance” in November 2024, as Mr Mastilovich believed this was “sufficient” time to determine the performance of employees.

•    An appraisal form was prepared for each employee’s mid-probation review. Employees were rated between one and five against a series of criteria. The criteria were:

(a) Attitude towards safety;

(b) Engagement with safety initiatives;

(c) Correct dress code;

(d) Punctuality/attendance;

(e) Ability to take on extra shifts;

(f) Attitude towards work;

(g) Follow directions;

(h) Ability to learn new tasks quickly;

(i) Initiative/problem solving;

(j) Personal conduct;

(k) Works with appropriate level of supervision;

(l) Effective communication; and

(m) Team work.

•    Mr Mastilovich attended the employee mid-probation review meeting with Mr McLure, Mr Luke Thornton, Mr Josh Auteri, who were “Leading Hands for Programmed at the Loy Yang mine”, and Mr Tim Bell, Mr John Panozzo-Tile, and Mr Jake Mackin, who were PIM supervisors at the mine. This meeting was held after the supervisors had provided their “initial assessment” of employees’ performances.

•    Any “union membership, delegate status, or any status as a HSR” or safety complaints were not “discussed or raised” during the mid-probation review meeting or in the appraisal process for Mr Mooney.

•    He had not provided Mr Mooney with “individual performance feedback” during the meeting on 6 December 2024, and “only spoke generally about the team’s performance”.

•    He denied saying to Mr Mooney that “there were no issues with him from the floor or that he said words to that effect”.

•    The 6 December 2024 meeting was designed to “check in” with Mr Mark Bruzzese regarding “the performance of the team and whether he had any feedback for Mr Mastilovich”. The meeting was not “an individual performance assessment”.

•    After the mid-probation performance appraisals were completed, he instructed an administrative employee to “collate all of the data” for each employee into a “master spreadsheet”. If an employee scored 40 or less, they would not pass the probationary period. This score was selected as it indicated that an employee “had received an average score of around 3 for each individual criterion” in their appraisal.

•    Upon a review of the spreadsheet, Mr Mastilovich “made a recommendation” to the General Manager of PIM, Mr Zammit, that Mr Mooney, and other employees who received a score of 40 or less, should be dismissed.

•    None of the other employees dismissed at the same time as Mr Mooney were, as far as he knew, union delegates or HSRs, nor was he aware whether or not they were union members or had lodged complaints against PIM.

•    He had not considered any “legal risk” when terminating the employment of Mr Mooney and the other employees.

•    Mr Zammit authorised Mr Mastilovich to dismiss Mr Mooney and other employees.

•    Although approval was given to terminate employment contracts in December 2024, Mr Mastilovich and Mr Zammit decided to delay the termination until after 6 January 2025, given the proximity to Christmas and PIM’s office shutdown period.

•    At the time of the termination of Mr Mooney’s employment contract, PIM employed four individuals (including Mr Mooney) who had been appointed HSRs. Two other HSRs have since relinquished those roles.

•    Since Mr Mooney’s dismissal, PIM has established a single DWG and proposed a new structure for HSRs. However, no employee has nominated to become a HSR. PIM has engaged “in discussions with the relevant unions about this” and encouraged “employees to become a HSR”, and it is “directly consulting with its employees at the Loy Yang mine on all matters related to safety”.

•    Mr Mooney’s absence had not adversely affected reports on safety concerns at PIM.

•    Before Mr Mooney’s termination of employment, Mr Mastilovich was “not aware of the CFMEU exercising any right of entry powers to enter the Loy Yang mine”, but since then the CFMEU “have exercised their right of entry in respect in respect [sic] of purported safety concerns on several occasions on 17, 21, 23 and 24 January 2025” but had only identified one “substantive safety related supervision issue”.

24    Second, Mr McLure informed Mr Hardinge that:

•    He “participated in the Employee mid-probation review meeting and finalised each Employee’s appraisal form by signing off on it for actioning by more senior management”. This included Mr Mooney’s appraisal form.

•    During the mid-probation review meeting, “he and the other Programmed leadership employees in attendance reviewed the appraisal assessments” and provided “feedback”.

•    During the mid-probation review meeting, one of Mr Mooney’s supervisors said that while on the phone with another PIM employee “he asked that employee to undertake a task” and “heard Mr Mooney in the background say words to the effect of: Fuck off. Do it yourself you lazy cunt”(the comment).

•    The general feedback regarding Mr Mooney was that he “did not have a good work ethic and had a bad attitude towards supervisors”.

•    Mr McLure was aware of the comment, and unsurprised to hear it raised at the meeting.

•    As to the scores on the appraisal form, Mr Mooney was

•    “given a score of ‘4’ for his attitude towards safety and separately for his engagement with safety initiatives. He was given a score of ‘1’ in criteria relating to his attitude towards work, initiative / problem solving, personal conduct, and team work in the appraisal form that was signed off by Mr McLure”.

•    Given the feedback provided about Mr Mooney, and the scores assigned, Mr McLure “was comfortable with the assessment that had been given”.

•    Mr Mooney’s appraisal form was provided by Mr McLure to Mr Mastilovich.

•    PIM’s contract with AGL meant they were “contractually bound to provide a safe working environment and to reduce and mitigate safety risks”.

25    Third, Mr Mastilovich and Mr McLure informed Mr Hardinge that:

•    PIM “takes its safety obligations at the Loy Yang Mine very seriously”.

26    Fourth, Mr Zoetbrood informed Mr Hardinge that:

•    After the dismissal of Mr Mooney and the other employees, all remaining PIM employees had “engaged in unprotected industrial action” commencing on 16 January 2025. Between 16 January 2025 and 19 January 2025, further action was taken. On 30 January 2025, all PIM employees failed to attend their shift.

27    Fifth, Mr Farrant informed Mr Hardinge via email on 14 February 2025 of a job search conducted through the website Jora. The screenshot of the job search indicated that “since the CFMEU commenced this proceeding, there have been available jobs in the Latrobe Valley that Mr Mooney is qualified to perform”.

28    Finally, Mr Hardinge deposed that:

•    On 29 January 2025, PIM made an application pursuant to s 418 of the FWA. This application sought orders preventing the employees from “taking further unprotected industrial action”.

•    On 30 January 2025, PIM obtained such orders from the Fair Work Commission.

•    PIM was “legally obliged to comply with the Occupational Health and Safety Act 2004 (Vic)”.

•    Although the OH&S Act enables employees to appoint a HSR, this is not required to comply with the Act.

Second Affidavit of Mr Vroland

29    In Mr Vroland’s second affidavit, he deposed that he had been informed of certain matters by Mr Mooney, Mr Mark Bruzzese and Mr Mackin.

30    Mr Mooney informed Mr Vroland as follows:

    That “he does not recall ever having said” the comment in Mr Hardinge’s affidavit, or words “anything like them, in any context”.

    That he “denied to me that he has ever said those words, or anything like them, to a supervisor, either during his employment at Programmed, or at any other time, either directly or indirectly”.

31    Mr Mark Bruzzese informed Mr Vroland as follows:

    That he was employed by PIM as a “rigger/scaffolder/crane driver since mid-September 2024”, but was not “a leading hand” and had no “supervisory responsibilities”.

    In or around early December 2024, he attended a PIM pre-start meeting, at which Mr McLure “announced that individual performance reviews” would be held.

    He attended the 6 December 2024 meeting with Mr Mastilovich and Mr Mooney, and that:

(a)    the meeting commenced at around 2.00 to 2.30pm on 6 December 2024;

(b)    he understood the purpose of that meeting to be for Mr Mastilovich to conduct a review of his performance in his employment;

(c)    he asked Mr Mooney to attend the meeting with him as his representative.

(d)    when he arrived at the meeting with Mr Mooney, Mr Mastilovich welcomed them both and after a brief discussion said words to the effect of “Well I might as well do both of your reviews if you’re comfortable” and both Mark Bruzzese and Mr Mooney agreed with this;

(e)    during the course of the meeting he saw Mr Mastilovich regularly taking notes on his iPad but that he did not see what Mr Mastilovich was writing;

(f)    despite his understanding that the purpose of the meeting was to review his and (by virtue of the agreement referred to above) Mr Mooney’s performance in their respective employment, Mr Mastilovich’s focus during the meeting was primarily on the performance of the entire “team”, that is the entire Programmed employee group as a whole, but that Mr Mastilovich also discussed his and Mr Mooney’s employment;

(g)    at one point Mr Mastilovich said words to the effect of “there’s no problem with either of you two from the floor”

(h)    discussion then turned to how the business could improve overall and whether or not either Mark Bruzzese or Mooney had any suggestions for improvements.

32    Mr Mackin informed Mr Vroland as follows:

    He was employed at PIM as “a supervisor of mechanical works” at the mine from September 2024 until his resignation in mid-December 2024.

    He “supervised Mr Mooney to a greater degree than any other supervisor working for Programmed during the period of his employment and as such was well positioned to assess Mr Mooney’s performance as an employee”.

    In or around November 2024, he conducted a performance appraisal of Mr Mooney, using the appraisal form. He “considered Mr Mooney to be a good performer”. He “scored him accordingly” such that “to the best of his recollection he scored Mr Mooney 4 or higher in most categories when completing the form”.

    He “left Mr Mooney’s performance appraisal form on the desk in Mr Mastilovich’s office along with those for the other employees he appraised”.

    He attended the mid-probation review meeting, as described in Mr Hardinge’s affidavit, and “agrees that those present at the meeting discussed the performance of Programmed’s employees by reference to their performance appraisal forms”.

    He had no recollection of a “specific discussion” about Mr Mooney’s comment. He had not heard Mr Mooney make the comment, nor did he raise that issue in the meeting.

    He did not “give the feedback regarding Mr Mooney that Mr McLure claims was given by the supervisors”, rather he gave “positive” feedback about Mr Mooney.

    The meeting discussed the “next steps” after the performance reviews, and Mr Mackin “suggested that any employees judged to be poor performers should be spoken to and given an opportunity to address and [sic] performance issues and that those present agreed that this would be the process”.

Objections to Evidence

33    The applicants objected to the evidence contained at [25] and the second sentence at [26] of Mr Hardinge’s affidavit. The evidence was as follows:

Mr McLure has informed me that during the Employee mid-probation review meeting, one of Mr Mooney’s supervisors told the leadership team about an occasion when he was on the phone with another Programmed employee and he asked that employee to undertake a task, to which he heard Mr Mooney in the background say words to the effect of: “Fuck off. Do it yourself you lazy cunt.”

…

Mr McLure has informed me that he was aware of the comment that Mr Mooney had made towards the supervisor prior to the meeting and was therefore not surprised when this was raised during the meeting or by the comments of Mr Mooney’s other supervisors.

Hearsay Objection

34    The applicants objected to the evidence at [25] of Mr Hardinge’s affidavit on the basis of hearsay.

35    Section 59 of the Evidence Act 1995 (Cth) (Evidence Act) excludes the use of hearsay evidence in Court proceedings. However, s 75 of the Evidence Act states:

75 Exception: interlocutory proceedings

In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

36    The applicant submitted that the comment contained at [25] of Mr Hardinge’s affidavit was hearsay, but it did not fall within the exception in s 75 of the Evidence Act because evidence of its source was not adduced by the respondent.

37    The applicants relied upon the judgement of Rangiah J in CPB Contractors Pty Ltd v Construction, Forestry and Maritime Employees Union [2024] FCA 459 which concerned an alleged contravention of s 462 of the FWA by the CFMEU, relating to interference with protected action ballots: CPB Contractors Pty Ltd at [2] – [3]. In that case there were seven employees from a group of 212 unnamed employees to whom the contested statements might have been attributed: CPB Contractors Pty Ltd at [49]. The CFMEU objected to several pieces of evidence, which were conceded by CPB Contractors Pty Ltd to be hearsay, on the basis that they did not fall within the exception to hearsay in s 75 of the Evidence Act because the sources were not identified: CPB Contractors Pty Ltd at [13] – [18], [20], [25] – [26]. However, CPB Contractors Pty Ltd argued that “a source might be identified for the purpose of s 75 without their name being given”, relying on a decision of McCallum J (as her Honour then was) in Liu v Age Co Ltd [2010] NSWSC 1176 at [45], even though in that case the unattributed evidence was found to be inadmissible: CPB Contractors Pty Ltd at [22] – [23].

38    At [31] – [46] of CPB Contractors Pty Ltd, Rangiah J comprehensively reviewed the case law which has dealt with this issue before concluding at [47] as follows:

CPB relied upon this passage to submit that it was sufficient that the affidavits revealed the unnamed employees to be members of an identified group. However, the opinion expressed in such absolute terms by Snaden J as to what amounts to sufficient evidence of the source for s 75 of the Evidence Act does not, with respect, seem to be supported by earlier decisions of intermediate appellate courts. As was held in Ahern (approved in Vu), the sufficiency of the disclosure depends on the exigencies of each particular case and is a matter for a court’s discretion. Where the source of the information is attributed to an unnamed member of an identified group, a relevant factor must be the breadth of the identified group, bearing in mind that an object of disclosure is to allow the opposing party to test the evidence and make sensible submissions as to its weight. It could not be thought, for example, that it would be sufficient to describe an unnamed source as a member of a group identified as consisting of residents of Queensland. However, it can be accepted that s 75 does not require that the person who is the source of the information be named in every case, and that a description of an unnamed person as a member of an identified group may suffice depending on the exigencies of the case.

(Emphasis in original)

39    At [49] of CPB Contractors Pty Ltd, Rangiah J added:

… A matter that underlies the requirement for the party relying on evidence that would otherwise be inadmissible hearsay to adduce evidence of its source is the need for the opposing party to be provided with procedural fairness.

40    There is no doubt that the evidence contained at [25] of Mr Hardinge’s affidavit is hearsay evidence. It is also clear that no individual source has been identified.

41    As to whether it is possible to identify the source of information, the respondent submitted that it is from the group of Mr Mooney’s supervisors who were present at the mid-probation review meeting as identified at [22] of Mr Hardinge’s affidavit. That affidavit identifies three possible “supervisors” who might have overheard Mr Mooney make the comment. Mr Vroland’s evidence in his second affidavit is that Mr Mackin did not overhear the comment, leaving a possible two supervisors who might have heard it. Therefore, the respondent submitted, as the group consisted of only two, or three, people as distinct from the seven of 212 people potentially identified as the source of the impugned evidence in CPB Contractors Pty Ltd, the disclosure is sufficient.

42    Those submissions are not accepted. The exigencies of this case are such that the respondent should have identified the source with precision. No doubt the respondent has been under time pressure to respond to the applicants’ case, but the Court may only proceed on the evidence before it. The evidence of the comment is, on the respondent’s case, a key basis for Mr Mooney’s dismissal, and as such the applicants are entitled to be accorded procedural fairness to enable them to meet the opposing case. Accordingly, the objection is upheld.

Unfairly Prejudicial Objection

43    In the alternative, the applicants submitted that the evidence at [25] of Mr Hardinge’s affidavit should be excluded pursuant to s 135(a) of the Evidence Act. Section 135 of the Evidence Act provides:

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time.

44    In that regard the applicants relied upon Rangiah J’s statement at [55] of CPB Contractors Pty Ltd that:

In any event, I would have accepted the Union Parties’ alternative submission that the evidence of statements attributed to the seven employees of CPB should be excluded under s 135 of the Evidence Act.

45    I accept the applicants’ submission. Had I not accepted that the impugned part of the affidavit should not be admitted under s 75 of the Evidence Act, I would have accepted the alternative submission that the probative value of the evidence sought to be relied upon was substantially outweighed by the danger that it might be unfairly prejudicial to the applicants.

Relevancy Objection

46    The applicants also objected to the second sentence at [26] of Mr Hardinge’s affidavit on the basis of relevancy. Section 55 of the Evidence Act sets out when evidence is relevant.

55 Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to:

(a) the credibility of a witness; or

(b) the admissibility of other evidence; or

(c) a failure to adduce evidence.

47    The applicants orally submitted that the evidence at [26] of Mr Hardinge’s affidavit was “expressed in such general terms” that it could not have “any probative value”. The applicants contended that Mr McLure’s mere awareness of the comment was far too general. They argued that Mr McLure’s expression of non-surprise when the comment was raised during the meeting was irrelevant. I accept those submissions. Accordingly, the objection is upheld.

LEgislative framework

48    Section 346 of the FWA states:

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).

49    An officer is defined by s 12 of the FWA, which includes “a delegate or other representative of the association”.

50    Adverse action is defined in the FWA in s 342, and relevantly includes in Item 1, circumstances where the employer “dismisses the employee”.

51    The term “dismissed” appears in s 12 of the FWA, which refers to s 386 of the FWA. Section 386(1) of the FWA provides:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

52    A person cannot take adverse action against another person in the circumstances set out by s 340 of the FWA. 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).

53    Under s 341 of the FWA, a “workplace right” is defined as:

341 Meaning of workplace right

Meaning of workplace right

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee—in relation to his or her employment.

54    Regarding a “workplace law”, s 12 of the FWA states that:

workplace law means:

    (a) this Act; or

    (b) the Registered Organisations Act; or

    (c) the Independent Contractors Act 2006; or

(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).                    

55    A “workplace instrument” is defined in s 12 of the FWA as:

workplace instrument means an instrument that:

    (a) is made under, or recognised by, a workplace law; and

    (b) concerns the relationships between:

i.    employers and employees; or

ii.    digital labour platform operators and employee-like workers; or

iii.    road transport businesses and regulated road transport contractors; or

iv.    persons in a road transport contractual chain.

56    The relevant “workplace instrument” in this case is the PIM Agreement. The relevant clauses include:

24.     OCCUPATIONAL HEALTH & SAFETY (OH&S)

24.1.     The Company has a goal of a total injury free workplace. This can only be achieved with joint co-operation between management and all employees. Employees will be required to undertake internal safety inductions upon commencement of employment.

24.2.     The parties to this Agreement abhor the loss of life, sickness and disability caused at work. The parties agree to the establishment of health and safety committees in each workplace and the recognition of rights and training for health and safety representatives.

…

25.     FIRST AID TRAINING

25.1.     All full-time employees will be provided with Basic First Aid/CPR education and training.

…

41    ELECTION OF EMPLOYEE REPRESENTATIVES AND OHS REPRESENTATIVES

…

41.2     Employee Representatives and OHS Representatives

41.2.1     All persons covered by this Agreement recognise the important role of Employee Representatives and OHS Representatives. The Employee Representatives and OHS Representatives have a key role in the early intervention in industrial disputes and health and safety issues under this Agreement.

41.2.2     Employee Representatives' Rights

41.2.3     The Employer will recognise the following rights of Employee Representatives:

a)    The right to be treated fairly and to perform their role without any discrimination in their employment.

b)    The right to formal recognition by the Employer that the endorsed Employee Representative will speak on behalf of Union members in the workplace.

c)    The right of access to private telephone, facsimile, post, photocopying, Internet and email facilities on major projects (and elsewhere where practicable) for the purpose of carrying out their role.

d)    The right to place information related to permitted matters on a notice board in a prominent location in the workplace.

e)    The right to paid time to attend industrial tribunals and/or courts where they have been requested to do so by an employee engaged on the outage or project (which may include themselves) whom they represent in a particular dispute in their workplace. The right to paid time to assist and represent employees who have requested them to represent them in respect of disputes arising in their workplace.

f)    The right to represent the interests of members in their workplace to the Union, Employer and industrial tribunals/courts.

g)    The right to reasonable time during normal working hours to consult with employees, Union members and officials.

h)    The right to reasonable time to participate in the operation of the Union during normal working hours.

57    A person may take action for multiple reasons: s 360 of the FWA.

360 Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

58    Under s 361 of the FWA, prohibited reasons for action are presumed in the absence of evidence to the contrary. Importantly, s 361(2) of the FWA notes that this presumption does not apply to applications for orders for interim injunctions. Section 361 of the FWA reads as follows:

361 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.

59     Also relevant is the OH&S Act, s 58 of which sets out the scope of powers of health and safety representatives as follows:

58 Powers of health and safety representatives

(1) A health and safety representative for a designated work group may do any of the following—

(a) inspect any part of a workplace at which a member of the designated work group works—

(i) at any time after giving reasonable notice to the employer concerned or its representative; and

(ii) immediately in the event of an incident or any situation involving an immediate risk to the health or safety of any person;

(ab) take photographs or measurements or make sketches or recordings at any part of a workplace at which a member of the designated work group works, other than during an interview under paragraph (d) or (e);

(b) accompany an inspector during an inspection of a workplace at which a member of the designated work group works;

(c) require the establishment of a health and safety committee;

(d) if a member of the designated work group consents, be present at an interview concerning occupational health and safety between—

(i) the member and an inspector; or

(ii) the member and the employer concerned or its representative;

(e) if the health and safety representative is authorised to represent a person mentioned in section 44(1)(e) or 48(1)(e) and that person consents, be present at an interview concerning occupational health and safety between—

(i) the person and an inspector; or

(ii) the person and the employer concerned or its representative;

(f) whenever necessary, seek the assistance of any person.

(2) However, a health and safety representative may do those things only for the purpose of—

(a) representing the members of the designated work group, or persons mentioned in section 44(1)(e) or 48(1)(e) whom the representative is authorised to represent, concerning health or safety; or

(b) monitoring the measures taken by the employer or employers in compliance with this Act or the regulations; or

(c) enquiring into anything that poses, or may pose, a risk to the health or safety of members of the designated work group, or of persons mentioned in section 44(1)(e) or 48(1)(e) whom the representative is authorised to represent, at the workplace or workplaces or arising from the conduct of the undertaking of the employer or undertakings of the employers; or

(d) attempting to resolve (in accordance with section 73) with the employer concerned or its representative any issues concerning the health or safety of members of the designated work group, or of persons mentioned in section 44(1)(e) or 48(1)(e) whom the representative is authorised to represent, that arise at the workplace or workplaces or from the conduct of the undertaking of the employer.

(3) Nothing in this Act or the regulations imposes, or is to be taken to impose, a function or duty on a health and safety representative in that capacity.

consideration

60    The first applicant and second applicant have standing to sue as per item 11 of the Table in s 539 and s 540 of the FWA. The Court has the power to grant an interim injunction as per s 545(2)(a) of the FWA.

Interlocutory Application

61    The parties agreed as to the principles to be applied in respect of the grant of an interlocutory injunction as set out in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46. There must be a serious question to be tried, or prima facie case, and the balance of convenience must weigh in favour of granting the injunction: O’Neill.

62    Further, the issues of whether there is a serious question to be tried, and the balance of convenience, are not to be considered in isolation from one another: Samsung Electronics Co Ltd v Apple Inc and Another (2011) 217 FCR 238; [2011] FCAFC 156 at [67].

63    At 472 of Bullock v Federated Furnishing Trades Society of Australia (No 1) (1985) 5 FCR 464, Woodward J, with Smithers and Sweeney JJ relevantly agreeing, stated:

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

64    The Victorian Court of Appeal held in Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65; [2006] VSCA 89 at [35]:

… That is, whether the relief sought is prohibitory or mandatory, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong”, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.

65    This approach applies to mandatory and prohibitory injunctions equally: Bradto Pty Ltd at [35].

Has the applicant made out a prima facie case?

66    The applicants submitted that the respondent took adverse action, within the meaning of s 342 of the FWA against Mr Mooney through his dismissal, and that such adverse action was taken for prohibited reasons, namely the safety complaints made by Mr Mooney.

67    More specifically, the applicants submitted that:

    The respondent contravened s 340(1)(a)(i) of the FWA by dismissing Mr Mooney “for the reason, or for reasons that include the reason, that he had a workplace right” being a role or responsibility under the OH&S Act as a HSR and under cl 41.2.3(b) of the PIM Agreement respectively.

    Mr Mooney’s role as a CFMEU delegate “is a role or responsibility under a workplace instrument”.

    Mr Mooney made the safety complaints through both an “exercise of his role or responsibility as an HSR (under a workplace law), and/or as an exercise of his role or responsibility under clause 41.2.3(b) or (f) of the PIM Agreement (under a workplace instrument) within the meaning of s 341(1)(a)” and “in relation to Mr Mooney’s employment within the meaning of s 341(1)(c)”.

    The respondent contravened s 340(1)(a)(ii) of the FWA by dismissing Mr Mooney “for the reason, or for reasons that include the reason” that in making the safety complaints he had:

…

a.    exercised a role or responsibility under a workplace law; and/or in the alternative

b.    exercised a role or responsibility under a workplace instrument; and/or in the alternative

c.    exercised a workplace right to make a complaint or inquiry about his employment.

    Mr Mooney was “at all material times” a CFMEU member and, by way of his status as a CFMEU delegate, an officer as defined in the FWA. Under s 346(a) of the FWA, the word “officer” may comprise “the activities carried out as an incident to the holding of that position”. The making of the complaints by Mr Mooney was “an incident of his position as a delegate of the CFMEU” too.

    The respondent contravened s 346(a) of the FWA by dismissing Mr Mooney “for the reason, or for reasons that include the reason, that he was an officer or member of the CFMEU who made work safety complaints or raised work safety issues”.

    Mr Mooney had previously exercised workplace rights in relation to making safety complaints within his employment, which commenced shortly after PIM undertook a contract with AGL.

    There was evidence that AGL was resistant to Mr Mooney’s complaints.

    The respondent only took action to dismiss Mr Mooney after his return from annual leave.

    On that basis, the respondent dismissed Mr Mooney so that they could:

…

a.    prevent Mr Mooney from exercising a role or responsibility under a workplace law again; and/or in the alternative

b.    prevent Mr Mooney from exercising a role or responsibility under a workplace instrument again; and/or in the alternative

c.    prevent Mr Mooney from exercising a workplace right to make further complaints or inquiries about his employment.

68    Thus, the respondent contravened ss 340(1)(a)(i), 340(1)(a)(ii), 340(1)(b), and 346(a) of the FWA by dismissing Mr Mooney.

69    As has already been set out, there is no dispute between the parties that Mr Mooney was an officer of the CFMEU at the relevant time by means of his role as a delegate and in his capacity as HSR, that he was dismissed, and that consequently adverse action occurred.

70    The applicants correctly submitted that s 58(1) of the OH&S Act gives rise to workplace rights, as “it confers a role on those persons elected as a health and safety representative”.

71    To “prevent” a workplace right, under s 340(1)(b) of the FWA, was considered in Qantas Airways Ltd v Transport Workers Union of Australia (2023) 278 CLR 571; [2023] HCA 27 at [45], where the plurality (Kiefel CJ, Gageler, Gleeson and Jagot JJ) stated:

The focus of s 340(1)(b), in prohibiting adverse action “to prevent the exercise of a workplace right”, is the future exercise of a workplace right, not the present existence of a workplace right. The words “to prevent”, as has been emphasised, are directed to a substantial and operative reason for the taking of the adverse action and mean, in this context, “in order to prevent” or “with a view to preventing”. To “prevent” is to preclude the occurrence of an anticipated event or to render the event impractical or impossible by anticipatory action. To “prevent the exercise of a workplace right” encompasses stopping or putting an obstacle in the way of the exercise of a presently held right. But equally, it encompasses putting an obstacle in the way of exercising a right that may arise at some future date.

(footnotes omitted)

72    Further, as was made clear at [278] of Lee J’s reasoning, not disturbed on appeal, in Transport Workers’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244; [2021] FCA 873, “[s]ection 340(1)(b) contemplates acts to prevent employees exercising workplace rights by preventing circumstances arising whereby those rights could be exercised”.

73    As the evidence before me exposes, there are a number of contests between the parties as to the reason for the dismissal of Mr Mooney.

74    The respondent contended that there was no causal connection between the decision to dismiss Mr Mooney and his exercise of workplace rights and attributes of union membership and as an “officer”. Further, the respondent submitted, although Mr Mooney’s dismissal was adverse action it was not taken for a prohibited reason. The respondent contended that the context surrounding Mr Mooney’s performance review was critical. It was at around halfway through his qualifying period. According to the respondent, nothing should be made of the time which elapsed between the negative performance appraisal and the dismissal as, for part of the time Mr Mooney was on leave, and in any case, he represented no imminent risk to PIM. On the respondent’s case the focus was on the end of the qualifying period, which was deliberately calculated to align with the statutory minimum period after which an employee is entitled to recourse under the unfair dismissal legislation.

75    Similarly, that Mr Mooney had been given no negative feedback was, the respondent submitted, explicable by the qualifying period and the belief of Mr Mastilovich that the provision of negative feedback was unnecessary in those circumstances. The nature of the performance appraisal was, in the respondent’s submission, consistent with an appraisal to determine whether an employee should be retained beyond the qualifying period. The review took feedback from Mr Mooney’s supervisors which was signed off and relied upon as the basis for the dismissal. The respondent contended that there were notes and examples to support the ranking given to Mr Mooney, and ultimately Mr Mastilovich used those rankings by reference to a mathematical calculation to determine where Mr Mooney fell with respect to the cut off level within the total rankings considered to justify dismissal. To the extent that the notes contained in the appraisal form were brief, the respondent submitted that also was consistent with the nature of the appraisal, that is, it took place with respect to 70 employees to determine who should be retained beyond the qualifying period. In any case, the respondent argued, the form allowed very little room for comments and examples.

76    The respondent also submitted that the meeting which took place on 6 December 2024 was not a performance review for Mr Mooney. The respondent contends that the words “there are no issues with him from the floor” were not said. The respondent supported that by submitting that it was unlikely such positive words would have been said shortly after the negative performance review had taken place. Further, if those words were said, the respondent argued, it is not clear what was meant by them in the context of PIM’s assessment of Mr Mooney.

77    With respect to the evidence regarding the other employees dismissed at the same time as Mr Mooney, the respondent submitted that it should be given no weight and that it could not support any “safe inference” being drawn. The respondent elaborated upon this submission pointing to the insufficiency of evidence as to the circumstances of the other employees’ dismissal, and for that matter, the circumstances of employees not dismissed. For example, employees not dismissed may also have raised safety concerns. The respondent also submitted that Mr Mooney’s dismissal should be distinguished, and considered separately, from the dismissals of the other employees.

78    There may be some force to the explanations for Mr Mooney’s dismissal sought to be advanced by the respondent. However, the sum of the timing of the safety complaints made by Mr Mooney, relative to his performance review and dismissal, the failure to raise any concerns as to his performance with Mr Mooney prior to his dismissal, the delay between the performance review in November 2024 and the dismissal in January 2025, and the absence of tangible examples of his poor attitude and “fit” for PIM give rise to an arguable circumstantial case that the dismissal was for a prohibited reason. This is only amplified by the lack of clarity surrounding the purpose and content of the meeting on 6 December 2024.

79    The applicants submitted that the reverse onus in s 361(2) of the FWA should be considered in assessing the strength of their prima facie case. The applicants asserted that the preferred interpretation of the reverse onus provision in s 361(2) of the FWA to be adopted is that of Ryan J in Police Federation of Australia v Nixon (2008) 168 FCR 340; [2008] FCA 467 at [68] – [69]. This would indicate that the reverse onus, as a factor which exists at trial, should be considered in assessing whether there is a prima facie case. Contrastingly, the respondent argued that the approach which should be adopted is one explained by Snaden J at [52] of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v O-I Operations (Australia) Pty Ltd [2019] FCA 1272. This would indicate that the operation of the reverse onus in s 361(2) of the FWA is clearly excluded from consideration at an interlocutory level. Further, the respondent argued cases decided to the contrary are plainly wrong.

80    As I conclude that there is a prima facie case that adverse action has been taken by the respondent against the applicants for a prohibited reason on the basis of the evidence discussed above, I have not considered the interpretation of the reverse onus provision in s 361(2) of the FWA.

Does the balance of convenience weigh in favour of the applicant?

81    The parties are at odds as to where the balance of convenience lies.

82    The applicants’ submissions included that:

    The CFMEU provided the Court with the usual undertaking as to damages.

    The reinstatement of Mr Mooney will not place him in a better position than he would have been in should PIM be successful at trial, considering the terms of the order sought.

    The reinstatement of Mr Mooney would ameliorate the economic and non-economic harm he suffered as a result of loss of employment.

    The reinstatement of Mr Mooney would prevent him being denied the benefit of full-time and ongoing employment.

    The reinstatement of Mr Mooney would restore his enjoyment, mood and relationships with others.

    The reinstatement of Mr Mooney is achievable, as Mr Mooney is “ready, willing and able” to recommence his employment with PIM.

83    The applicants also submitted that were the Court to adopt the wording of the amended draft order, Mr Mooney, if reinstated, would not be placed in a better position than he would have been in, should PIM be successful at trial. This is because, on the applicants’ case, the draft order makes clear it would not require PIM to consider any such work rendered by Mr Mooney in satisfaction of the qualifying period of his employment. That submission must be accepted.

84    The applicants contended that Mr Mooney would suffer economic and non-economic harm, as a result of his loss of employment, which would be ameliorated by reinstatement. In terms of economic harm, Mr Mooney will be denied the benefit of full-time and ongoing employment. He owns two properties and has two mortgages. He has concluded that he should not persist with plans to build a second dwelling on one of the properties and that he should sell one of them to ensure some financial security during his unemployment.

85    The applicant also submitted that Mr Mooney’s dismissal deprived him of his enjoyment of his employment, and his satisfaction in his roles as a HSR and CFMEU delegate. It is now well established that work is seen as beneficial and important beyond the payment received: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70; [2013] FCA 525 at [114]; Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539; [2005] HCA 22 at [32], [80]; William Hill Organisation Ltd v Tucker [1999] IRLR 313; [1999] ICR 291 at 299; Quinn v Overland (2010) 199 IR 40; [2010] FCA 799 at [102] – [103]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers’ Union (AMWU) v McCain Foods (Aust) Pty Ltd [2012] FCA 1126 at [47] – [48]; Elisha v Vision Australia Ltd (2024) 99 ALJR 171; [2024] HCA 50 at [67].

86    Next, the applicants submitted that Mr Mooney felt “awkward” and “embarrassed” since his dismissal. Mr Mooney felt “depressed and has lost his trust in people”. As Mr Mooney and his wife were trying to conceive through IVF treatment, Mr Mooney expressed concerns about the effect of “stress” caused by his dismissal upon his wife.

87    The applicants also contended that Mr Mooney’s reinstatement would have a positive benefit for PIM employees, the CFMEU and its members. The applicants submitted PIM employees, the CFMEU and its members’ deprivation of “effective workplace representation” could be a “highly relevant factor” going to the balance of convenience, relying upon McCain Foods (Aust) Pty Ltd at [50].

88    In advancing this submission, the applicants emphasised that Mr Mooney was the CFMEU’s only member and delegate who had been elected as an HSR at PIM and that “no-one else has been willing to replace Mr Mooney as HSR”. The applicants submitted that the interests of the other PIM employees had been “prejudiced by a reduction in the numbers of HSRs providing effective health and safety representation”. Further to this, the applicants submitted that cl 41.2.1 of the PIM Agreement implies that employee representatives will be available for PIM employees.

89    The respondent disputed the extent of both the economic and non-economic harm to Mr Mooney, pointing to his failure to provide “financial information or documentation” going to his financial circumstances. The respondent also contended that there was evidence that there were “comparable roles” which Mr Mooney could have sought, which would have “ameliorate[d] any economic loss and non-economic harm”. There was disagreement between the parties as to whether the roles proposed were indeed comparable. In any case, the evidence in question was scant and not persuasive.

90    While conceding that third parties and the public may suffer detriment should an injunction be refused, the respondent submitted that the weight to be attributed to such a consideration is dependent upon the circumstances, relying on Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 at [65] – [66]. The respondent submitted that PIM is not required by legislation to have HSRs onsite, and that in any case it is “actively” seeking employees to fill the HSR role. Further, the respondent submitted that the CFMEU can “appoint another delegate” at the mine. The respondent contended that McCain Foods (Aust) Pty Ltd was not analogous to this case as the experience and effectiveness of Mr Mooney as a delegate had not been established. The respondent also submitted that there was evidence that since Mr Mooney’s dismissal there had been no detriment to its safety outcomes.

91    I accept the applicants’ submissions that both the CFMEU and other PIM employees have a direct interest in Mr Mooney being reinstated to his role and in his capacity as a union delegate and HSR, on the basis that Mr Mooney was the only CFMEU delegate who also held a HSR role, and that PIM employees may be prejudiced by having one less HSR to voice their health and safety concerns, in circumstances where there is currently no other member of the CFMEU willing to nominate for the role of a HSR.

92    I am persuaded of the desirability that employee representatives will be made available to PIM employees on the basis of their important role in maintaining health and safety.

93    The applicants submitted, and I accept, that Mr Mooney has some experience in the role of a HSR, given he has occupied such a role in 10 previous employments. I also accept that Mr Mooney was a very active HSR, who took his role seriously and derived satisfaction from ensuring the safety of his fellow employees at the mine. As to the respondent’s contention that the balance of convenience does not favour reinstatement as Mr Mooney was dismissed due to his unsatisfactory performance, given I have concluded there is a serious question to be tried, I do not consider this to be a persuasive argument, particularly given the respondent has failed to point to any prejudice it will suffer.

94    The respondent submitted that there was an “unexplained delay” of approximately 30 days between Mr Mooney’s dismissal and the applicants bringing their application. Without a “reasonable explanation”, the respondent submitted that delay can be “sufficient” to warrant dismissal of an interlocutory application, relying upon Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd and Others (1987) 76 ALR 633 at 638 – 639.

95    The applicants submitted in reply that the explanation for the timing of the application to this Court was informed by the filing of the application in the Fair Work Commission, and whether any other member of the CFMEU employed by PIM would nominate as a HSR. The applicants submitted that these proceedings were commenced soon after those events crystallised. Taking the intervening steps into account and considering that the delay was not great, I am not persuaded by the respondent’s submissions as to delay.

96    Finally, having regard to the historically cautious approach adopted with respect to the grant of mandatory injunctions in relation to reinstatement, the applicants submitted that the powers conferred by the FWA, which enable the Court to order reinstatement as a remedy, should remove “any reluctance” of the Court in that regard. The applicants pointed to Communications, Electrical, Electronic, Energy, Information, Postal and Allied Services Union of Australia v Dee Vee Pty Ltd [2012] FCA 988, in which Tracey J ordered reinstatement in similar terms to the order sought in this matter.

97    Conversely, the respondent submitted that the Court’s widespread powers under s 545 of the FWA to order compensation, reinstatement, and to remedy the effects of contraventions, amongst other things, were sufficient remedies available to the applicants at the time of the substantive determination. However, given that the inadequacy of damages is not a necessary precondition for the granting of final injunctive relief under the FWA, which is, inter alia, what is sought in this case, I do not consider the adequacy of damages to be of much relevance. In any case, it is difficult to see how damages could be an adequate remedy for the non-economic harm suffered by Mr Mooney.

98    Taking the above into account, I consider that the balance of convenience favours the applicant. The evidence was that Mr Mooney has and will suffer economic harm due to the loss of income. He will be deprived of the work he has been doing. There is also uncontested evidence that Mr Mooney and his wife are trying to conceive through IVF, and that Mr Mooney is concerned about the effect of the “stress” caused by his dismissal upon his wife.

99    The further evidence is that the employees of PIM and the public will benefit from Mr Mooney’s reinstatement and the concomitant advantage that he will be able to fill the role of HSR and CFMEU delegate. While the respondent made submissions as to alternative measures being adopted by PIM to bolster health and safety there was little evidence to support the submissions, some of which proceeded on the misconception as to the operation of the FWA, the workplace instrument and the OH&S Act.

100    I am therefore satisfied that the balance of convenience favours the applicants.

conclusion

101    The applicants’ application for an interim injunction reinstating Mr Mooney to his employment at PIM be granted.

Associate:

Dated: 26 March 2025