Geeral protections cases and injunctions

This is a very interesting decision of the Federal Court of Australia dealing with an urgent application by an employee for an interlocutory or interim injunction to restrain an employer, in this case a trade union, from dismissing him with the employee alleging a breach of the general protections.

 

“REASONS FOR JUDGMENT

SNADEN J:

1    The applicants, Mr Dixon and Ms Minhas, move upon an originating application dated 27 November 2023 for interlocutory relief against the first respondent, by which they are presently employed. That application has come before the court as a matter of urgency and the reasons that follow have been prepared with equal haste. I record the court’s gratitude to counsel and those who assisted them for the expertise by which the court was assisted on such short notice.

2    The applicants are currently at the proverbial pointy end of a disciplinary process upon which the respondents have embarked against them. They petition the court for interlocutory injunctive relief to restrain the first respondent from terminating their employment, from continuing to subject them to a “show cause” process related to that disciplinary course, and from continuing to suspend them from the performance of their duties. For the reasons that follow, that relief must be declined.

3    The background facts may shortly be stated. They emerge from the affidavit material upon which the parties relied for the purposes of the urgent interlocutory hearing. For the applicants, five such affidavits were relied upon, namely:

(1)    an affidavit affirmed by Mr Dixon on 27 November 2023;

(2)    an affidavit affirmed by Ms Minhas on 28 November 2023;

(3)    an affidavit affirmed by Mr Sam Roberts on 27 November 2023;

(4)    an affidavit affirmed by Mr Gregory Romeo on 28 November 2023; and

(5)    an affidavit affirmed by Mr Dario Mujkic on 6 December 2023.

4    For the purposes of the interlocutory application, the respondents read ten affidavits, namely:

(1)    an affidavit affirmed by Ms Carolyn Smith on 1 December 2023;

(2)    an affidavit affirmed by Ms Demi Pnevmatikos on 1 December 2023;

(3)    an affidavit affirmed by Ms Helen Gibbons on 1 December 2023;

(4)    an affidavit affirmed by Ms Lyndal Ryan on 1 December 2023;

(5)    an affidavit affirmed by Ms Sharron Caddie on 1 December 2023;

(6)    an affidavit affirmed by Ms Karma Lord on 2 December 2023;

(7)    an affidavit affirmed by Ms Melanie Gatfield on 2 December 2023;

(8)    an affidavit affirmed by Ms Jo-anne Schofield on 4 December 2023;

(9)    an affidavit affirmed by Mr Gary Bullock on 4 December 2023; and

(10)    an affidavit affirmed by Mr Ben Redford on 4 December 2023.

5    The first respondent is a large trade union. It is registered as an employee organisation pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth) and its standing to sue and be sued is not presently to be doubted. The second respondent holds office as its National President. The applicants are both employees engaged in what is apparently known as the union’s “logistics” team. Mr Dixon is engaged in the position of Coordinator; Ms Minhas as Lead Organiser.

6    With the exception of Mr Romeo, the remaining deponents are all officials of the union. Mr Romeo is a solicitor who acts for the applicants. Each of the deponents of the affidavits upon which the respondents rely is a member of an administrative body within the union known as its “national executive”.

7    In its current form, the union is a relatively recent invention. It took shape in 2019 upon the amalgamation of two long-standing employee organisations: the National Union of Workers and United Voice, the latter of which was once (and perhaps more historically) known as the Liquor, Hospitality and Miscellaneous Workers Union.

8    Throughout 2022 and into 2023, members of the union’s logistics team—including the applicants—appear to have formed some views about the broader administration of the union; in particular, about wage increases afforded to staff within the union and about a hiring freeze that, according to Mr Dixon, was implemented in mid-to-late 2022. It seems uncontroversial to observe that those views translated into a measure of frustration on the part of logistics team members (or, at the least, Mr Dixon and Ms Minhas).

9    In April 2023, the union’s national executive passed a resolution about a further round of wage increases for union staff. Specifically, it was resolved that staff would be paid an increase of 3%. That was not well received by Mr Dixon, Ms Minhas and, it seems, members of the logistics team. Mr Dixon, in particular, formed the view that it might portend a suite of resignations, which, combined with the hiring freeze referenced above, would make the business of representing the union’s members all the more difficult to competently discharge.

10    Those concerns prompted the applicants to initiate efforts to secure what the Fair Work Act 2009 (Cth) (the “FW Act”) refers to as a “majority support determination”. Those efforts commenced with the circulation of a petition amongst the union’s staff, the apparent purpose of which was to indicate a desire on their part to bargain with their employer in relation to a proposed “enterprise agreement” under pt 2-4 of the FW Act.

11    According to the applicants, some within the union did not take kindly to those endeavours. They contend that counter efforts were made to encourage staff not to sign the petition, which appear to have led to a measure of accusation and counter-accusation as to the merits of what was proposed.

12    Not long thereafter—and, they say, as a consequence of what they had sought to progress—each of Mr Dixon and Ms Minhas found themselves at the wrong end of misconduct allegations. It is unnecessary that I should particularise those allegations now: it suffices to summarise that each was said, by various interactions that they were alleged to have had with other members of the union’s staff, to have conducted themselves in breach of the union’s code of conduct or other policies (and, in particular, those that concern harassment, discrimination and bullying).

13    That process began on 26 May 2023, when each applicant received correspondence informing them of complaints that had been made about them. Each was told that the union had commissioned an external investigator, Ms Barbara Deegan—a former commissioner of the Fair Work Commission (and its predecessors)—to investigate those complaints.

14    Ms Minhas responded to the initiation of that investigatory process by raising complaints of her own about how others had treated her. Again, it is unnecessary to particularise those complaints; it suffices for present purposes to acknowledge their making and to note that Ms Minhas does not consider that the union has adequately addressed them.

15    Between June and November 2023, the complaints that were levelled against Mr Dixon and Ms Minhas were the subject of consideration by Ms Deegan. That consideration involved, at the least, efforts to particularise the complaints more fulsomely than they were initially particularised, meetings with each of the applicants, the receipt by Ms Deegan of written responses from each of the applicants, and the preparation of a report that Ms Deegan provided to the union’s national executive.

16    Upon commencement of that investigatory process, each of Mr Dixon and Ms Minhas was subjected to various restraints upon the discharge of their functions, including as to the performance of their roles from the union’s premises.

17    In late October 2023, each of the applicants was informed that Ms Deegan had concluded that the allegations raised against them (or at least most of the allegations raised against them) were substantiated. Each was told that the union’s national executive had resolved to accept those findings, to stand each of Mr Dixon and Ms Minhas down from their positions and to invite written representations as to what, if any, subsequent steps might be taken in light of them.

18    Those invitations were accepted. Each of Mr Dixon and Ms Minhas provided a written response by which they challenged Ms Deegan’s findings against them and maintained that the union ought not take any disciplinary action against them. Each questioned Ms Deegan’s approach to the investigation and maintained that her findings were flawed in ways to which I needn’t here descend.

19    In early November, the applicants received from the union correspondence acknowledging their responses. They were told that the union’s national executive proposed to meet later that month to consider what, if any, disciplinary action might be taken against them in light of Ms Deegan’s findings and their responses to them.

20    That meeting took place on Friday, 24 November 2023. The union’s national executive there resolved to require that each of the applicants show cause as to why their employment ought not to be terminated. Notice of that resolution was provided to the applicants by way of correspondence dated Monday, 27 November 2023. That appears to have been the catalyst for the filing of the present application.

21    Mr Dixon and Ms Minhas both contend that the complaints that were levelled against them, Ms Deegan’s investigation of them, and the union’s resolution to accept her findings and to impose a disciplinary sanction in the form of dismissal are, each and collectively, an artifice that has been erected to disguise what is, in truth, a campaign that is being waged by their internal opponents to remove them from the union. That campaign, they contend, has been waged because of their efforts to promote the majority support determination process and/or (in Ms Minhas’s case) because of complaints that were made. They maintain that the termination of their employment, if it proceeds, will proceed in breach of s 340(1) of the FW Act; and also that they have been stood down from their positions and subjected to show cause processes in breach of that same prohibition.

22    The principles that govern the court’s discretion to grant interlocutory injunctive relief are well-settled and not in dispute. In order to qualify for the relief that they seek, the applicants must demonstrate that they have a prima facie case for it and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 (“O’Neill”), 81-84 [65]-[72] (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed).

23    An applicant for an interlocutory injunction needs to establish that their prima facie case has a sufficient likelihood of success to justify the preservation of the status quo pending the trial. The strength of the likelihood depends upon the nature of the rights asserted and the practical consequences likely to flow from the order sought: O’Neill, 82 [65]; Quinn v Overland (2010) 199 IR 40, 50 [45]-[46] (Bromberg J); and AWU v Dee Vee [2012] FCA 988, [17]-[18] (Tracey J).

24    When considering the grant of an interlocutory injunction, the issue of whether an applicant has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience: Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238, 261 [67] (Dowsett, Foster and Yates JJ), citing, with approval, Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (2009) 81 IPR 339, 342 [15] (Sundberg J).

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

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

26    Additionally, an applicant for interlocutory injunctive relief must, in showing that the balance of convenience favours that outcome, point to inconvenience for which an award of damages at trial would not be a sufficient remedy: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153 (Mason ACJ); CEPU v Blue Star Pacific (2009) 184 IR 333, 339 (Greenwood J). That is not a third criteria upon which the granting of interlocutory relief hangs; rather, it forms part of the court’s assessment as to where the balance of convenience lies: Liberty Financial Pty Ltd v Jugovic [2021] FCA 607, [283] (Beach J).

27    I turn first to consider whether there exists a prima facie case for injunctive relief. Section 340(1) of the FW Act provides as follows:

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).

28    Adverse action is defined by s 342. Relevantly, it is defined widely enough to include certain kinds of threats. It is not presently in doubt that the proposed or potential termination of the applicants’ employment qualifies as adverse action. So too may that be said of the union’s decision to stand down each of Mr Dixon and Ms Minhas from their employment and to subject each of them to the show cause process that has brought the parties to where they now are. At least is that arguably so and nothing more need be said of it.

29    Section 341 of the FW Act identifies when a person might be thought to possess a “workplace right”. Relevantly, it provides as follows:

341 Meaning of workplace right

Meaning of workplace right

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

(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.

30    Adverse action that is taken for multiple reasons will be actionable under pt 3-1 if one of those reasons is a reason that that part proscribes: FW Act, s 360. Section 361 of the FW Act establishes a rebuttable presumption as to the reason or reasons for which adverse action should be understood to have been taken. It provides 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.

31    The applicants contend that they possessed a workplace right to obtain (or to seek to obtain) a majority support determination; and that, by circulating the petition that was created for that purpose, they should be understood to have proposed the exercise of that right. I accept, at least for present (interlocutory) purposes that that contention is arguable, if indeed it isn’t correct.

32    Ms Minhas also contends that she possessed a workplace right to complain as she did about her own alleged mistreatment. That right is said to have been conferred by various policy documents adopted by the union; particularly instruments that purport to regulate the conduct of its workforce. It was not suggested that the complaints that Ms Minhas made were not made in a way that those instruments authorised, nor that, by making them, she shouldn’t be understood to have exercised a workplace right that she possessed. I accept, for present purposes, that there is a prima facie case that, by complaining as she did in each case, Ms Minhas should be understood to have exercised a workplace right.

33    The applicants’ case under s 340 of the FW Act turns, as such cases invariably do, upon the subjective reasons that have animated the union’s conduct to date (and, in particular, its threat to dismiss the applicants from their employment). The applicants maintain that there is at least a prima facie case that the adverse action to which it is alleged that they are being (or are about to be) subjected was (or is to be) taken because, or for reasons that include that, they have exercised or proposed to exercise workplace rights.

34    There is nothing in the evidence that directly substantiates that assertion. Indeed, the respondents have led evidence from the members of the union’s national executive—which is the decision making body within the union that has resolved to impose upon the respondents the various forms of adverse action that are alleged—as to why they have and have not conducted themselves as they have. That evidence—untested as it obviously is at this interlocutory stage—is to the effect that, in each case, what has been done has been done for legitimate reasons relating to the applicants’ alleged and perceived misconduct; and has not been actuated by their having prosecuted moves toward a majority support determination. I shall return to that evidence momentarily.

35    The applicants do not accept that the conduct that is alleged to have been taken against them was actuated by the reasons identified by the respondents’ evidence. Instead, the applicants point to circumstances that, they say, suggest either that:

(1)    the reasons that have motivated the taking of the adverse action to which they allege that they are being (or will soon be) subjected are not the reasons that the respondents have proffered to that end; or

(2)    the taking of the adverse action to which they allege that they have been (or will soon be) subjected has been (or will be) actuated by reasons that include their having exercised or proposed to exercise workplace rights.

36    The applicants point to six circumstances that are said to substantiate those propositions. It is convenient to replicate the summary of them that is contained within the written submissions that were advanced before the court, to wit:

  • The UWU made six [a]llegations of misconduct (among others) that referred to or related to Mr Dixon and Ms Minhas having engaged in [conduct associated with the pursuit of a majority support determination]… The UWU is proposing to dismiss Mr Dixon and Ms Minhas for reasons that include or make reference to that conduct (whereas the UWU is not proposing to dismiss [a third employee], whose alleged misconduct did not refer to his involvement in conduct related to the [pursuit of a majority support determination]).
  • Ms Schofield, and other former members of [what was once called United Voice] (including those who sit on the [national executive]), had strong adverse reactions to the [conduct in which the applicants engaged in pursuit of a majority support determination].
  • The UWU has responded disproportionately and harshly towards the [a]pplicants, particularly when considering the nature and (lack of) seriousness and gravity of the [misconduct] [a]llegations and related findings, viewed in the context of a disciplinary outcome of dismissal.
  • The UWU commenced the [i]nvestigation [by Ms Deegan] very shortly after the [conduct in which the applicants engaged in pursuit of a majority support determination] occurred.
  • There were serious flaws in [Ms Deegan’s] [i]nvestigation process, which suggests the findings are unreliable. The UWU knew (and knows) of the unreliability of the findings, but continued (and continues) with the [previously described instances of alleged] [a]dverse [a]ction anyway. The UWU has not addressed, or attempted to refute, the [a]pplicants’ extensive responses as to the unreliability of the findings.
  • The UWU did not investigate the First Minhas Complaint (involving comparatively more serious allegations than those against the Applicants) or the Second Minhas Complaint (which included objectively serious allegations).

37    As I have said, there is nothing in the evidence that directly substantiates the applicants’ assertion that anything has been (or is to be) done to them because, or for reasons that include that, they have exercised or proposed to exercise workplace rights. Presently, if the court is to accept that there is a prima facie case that action is being taken or threatened against the applicants for that reason, it will do so as a function of inference. The applicants invite the court so to infer from any one or more of the six considerations identified.

38    Although there is scope for debate, I accept that the evidence suffices, at a prima facie case level, to establish each of the six circumstances to which the applicants point. The question that then arises (acknowledging that scope) is whether any of them suffices as a basis upon which the court might infer that anything has been or is proposed to be done to either of the applicants because, or for reasons that include that, they have exercised or proposed to exercise workplace rights.

39    I am satisfied that there is a prima facie case for concluding that each of the six identified circumstances suffices, or might suffice, as a basis upon which the court could infer that conduct has been or will be taken against the applicants for reasons that are not the reasons by which the respondents have asserted that it was (or is to be) actuated (see above, [35(1)]). It may be, as the respondents contend, that that case is weak to the point that it should be discounted at this interlocutory juncture. Whether that is so or not is not something that I need to decide. I accept that the circumstances relied upon are the types of circumstances that might lead the court to conclude at trial that the respondents’ evidence about why things have been (or will be) done should not be accepted.

40    That, though, does not suffice for present purposes. The prima facie case that the applicants need to establish is not that the reasons proffered by the respondents are not the actual reasons for which identified conduct is being or will be engaged in; the applicants must, instead, establish a prima facie case that the reasons for that conduct are reasons that pt 3-1 of the FW Act proscribes.

41    Something should be said about s 361 of the FW Act. At the trial of their application, the applicants will reap the benefit of the statutory presumption for which s 361(1) of the FW Act provides. It will, at that juncture, fall to the respondents to establish that they did not threaten or take adverse action against the applicants because, or for reasons that included that, they had each exercised or proposed to exercise a workplace right or workplace rights.

42    At the present (interlocutory) stage, however, the applicants can gain no assistance from that presumption: FW Act, s 361(2). That being so, the court must ask itself: is there anything in the evidence to suggest that the exercise or proposed exercise of a workplace right or workplace rights factors as having actuated the threatened termination of the applicants’ employment (or any other of the species of adverse action relied upon)?

43    On that front, the applicants rely upon the first, second and fourth of the six considerations referred to above (at [36]). Each requires some analysis.

44    First, the applicants contend that, because some of the conduct that was the subject of Ms Deegan’s investigation (and in respect of which it is alleged that the respondents have taken, or propose to take, the adverse action of which complaint is made) was conduct in which they engaged in connection with attempts to progress their majority support determination, the court should infer that the latter factors as the reason (or a reason) for the adverse action that is alleged.

45    Second, they contend that there is evidence to suggest that Ms Schofield and other members of the union’s national executive had strong adverse reactions to their efforts to secure a majority support determination. Those reactions, it is said, serve as a basis upon which the court might infer that subsequent action was taken or threatened against the applicants because of those efforts.

46    Lastly, the applicants contend that the temporal connection between the measures that they took to progress the majority support determination and the measures in which the respondents then engaged to investigate them for supposed misconduct is instructive. It is said that the court could infer, from the fact that the latter took place soon after the former, that the former was the reason (or one of the reasons) for the latter.

47    I do not consider that any of those three considerations suffices to establish a prima facie case that the respondents are taking or threatening to take adverse action against the applicants because, or for reasons that include that, they have exercised or proposed to exercise workplace rights.

48    As to the first, the evidence is overwhelming that the decision to investigate allegations of misconduct levelled against the applicants (and, indeed, against others)—and the subsequent decisions to take action in consequence of both that investigation and the findings to which Ms Deegan was drawn—bore no causal connection with the applicants’ efforts to secure a majority support determination or to Ms Minhas’s complaints about her own treatment. In saying so, I should be careful to acknowledge that there is no occasion now to make any findings to that effect. Nonetheless, unless the evidence as it presently stands is disturbed at trial, it is difficult to see how that conclusion might be avoided.

49    There seems little reason to doubt that the conduct that the respondents brought Ms Deegan in to investigate was the subject of complaints that were levelled against the applicants by various employees of the union (apparently as many as eight, although nothing turns on that). For reasons that might be imagined, I do not propose to particularise those complaints. It suffices to note that complaints about each of the applicants (and at least one other person) appear to have been received; that they appear to be in the nature of what would usually be thought serious enough to warrant investigation; and that the subsequent investigation and the findings that came of it appear to have been regularly undertaken or formed. Again, I needn’t make findings on any of those fronts. It suffices to note that there is nothing in the evidence at the moment—and I stress at the moment—that seriously calls any of that into question.

50    In saying so, I intend no defence of what the applicants maintain was a deeply flawed investigation process, nor what are said to be the unjustified findings or recommendations that have come of it. Perhaps those criticisms are fair. If they are, there is perhaps some reason to think that the court might have occasion at trial to reject the respondents’ evidence as to why the things that were (or propose to be) done in fact were (or propose to be) done; and, thereafter, to conclude that the statutory presumption for which s 361(1) provides stands unrebutted. But, at this interlocutory stage, there is simply no reason positively to suppose that the applicants’ exercise or proposed exercise of workplace rights bore causally upon the decisions to investigate or act upon the misconduct charges that were laid against them.

51    That some of the misconduct that has been alleged against the applicants transpired “in connection with” conduct that otherwise amounted to their exercise or proposed exercise of workplace rights is irrelevant. It is well accepted that, in ascertaining why particular adverse action was taken, the court is concerned to identify the subjective reasons of those who effected it, rather than the contextual circumstances within which those reasons came to be formed: Construction, Forestry Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (French CJ, Hayne, Crennan, Kiefel, Gageler JJ); Serpanos v Commonwealth of Australia [2022] FCA 1226, [279]-[284] (Snaden J) and, in particular, the authorities referred to in those passages. True it is that, in recent years, this court has breathed life back into the notion that “unconscious” influences might also be relevant in assessing the motivations that actuate corporate conduct: Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332, 347-348 [90]-[91] (Greenwood, Besanko and Rangiah JJ); Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 402 ALR 1, 63 [221], 64-65 [225]-[226] (Bromberg, Rangiah and Bromwich JJ); Wong v National Australia Bank Limited [2022] FCAFC 155, [25]-[26] (Katzmann, Charlesworth and O’Sullivan JJ). However, that strain of reasoning is limited, so far, to the relevance that attaches to the state or states of mind of those who influence (as opposed to effect) corporate decision making; it does not extend to contextual influences of the kind here in contemplation.

52    In summary, then—and on the evidence as it presently stands—I do not accept that the court might properly infer, from the contextual connection to which the applicants point, that the adverse action to which it is alleged that they are being (or will be) subjected is being (or will be) taken because, or for reasons that include that, they have exercised or proposed to exercise workplace rights.

53    I turn, then to the evidence about the “strong adverse reactions” that are alleged to have attended the applicants’ exercise or proposed exercise of workplace rights. Mr Roberts’s evidence (of course untested by cross-examination, as it presently is) is that the existence of the petition that was circulated for the purposes of securing a majority support determination was the subject of discussion at a meeting of the union’s national executive on 2 May 2023. It is said that, upon learning of the petition, Ms Schofield said words to the effect of, “…they don’t know what they’re getting themselves into. If they want to bargain, they better be prepared for it. The 3% increase [in staff wages that had previously been agreed] is in play now”. Mr Mujkic, who was also present at the meeting, offers similar evidence.

54    Mr Roberts also deposes to a conversation that he had two days later with another member of the national executive, Mr Redford. During that discussion, Mr Redford is alleged to have told Mr Roberts that, “…they’re furious. They believe you are behind [the petition]. They think it’s you, [Mr Dixon] and [another person]. They’re going to be very angry if we’re stuck with an agreement. Very angry with what Jonathon is doing”.

55    Ms Schofield’s evidence (which, of course, is similarly untested) is that she was not concerned that some staff wished to bargain with the union. Indeed, she deposes to having taken steps to “…have the [union’s national executive] communicate a position to staff that the [executive] was open to bargaining with them”. Those steps included the sending on 3 May 2023 of email correspondence that she drafted with the assistance of the union’s national secretary, which reflected that posture. That is, it is fair to say, difficult (though, of course, not impossible) to reconcile with the applicants’ narrative of ingrained executive hostility towards the efforts that were made to commence a bargaining process.

56    Mr Redford’s evidence about the conversation that he had with Mr Roberts is similarly instructive. Although “hazy” about what might have been discussed on 4 May 2023, Mr Redford deposes to a further conversation with Mr Roberts about the efforts that had been undertaken to secure a majority support determination. Mr Redford accepts that he told Mr Roberts that “some people thought that Mr Roberts was behind the [petition]”. However, he denies suggesting that anybody would be “angry if we’re stuck with an agreement”. At that point, he says, it had been agreed that the union would participate in bargaining (and hence there could be nothing for anybody fairly to be angry about).

57    Mr Redford also acknowledges telling Mr Roberts that “some people were pissed off about the way people had gone about collecting signatures for the [majority support determination petition]”. However, he denies that he mentioned or, indeed, was referring to Ms Schofield or any other member of the union’s national executive.

58    There are two issues that arise from this analysis. First, could it be said that the evidence discloses some degree of disapproval on the part of Ms Schofield or other members of the national executive arising from the applicants’ efforts to secure a majority support determination? Second—and assuming that it does—might the court fairly infer, on a prima facie case basis, that retaliatory conduct was then engaged in?

59    There is considerable doubt as to the first of those propositions. Ultimately, what will be at issue at trial is the state of mind with which the union, as their employer, was minded to subject the applicants to adverse action. The union’s state of mind will necessarily be ascertained by attribution: that is to say, it will depend wholly upon the states of mind of those through whom it relevantly acted. The states of mind of those people (whoever they are deemed to be) will fall to be determined on their evidence (including evidence given in cross-examination) or any admissions that they might be held to have made.

60    Concentrating, for now, upon Ms Schofield, the evidence as it presently stands does not establish any “strong adverse reaction” on her part to what was done by the applicants to secure a majority support determination. Ms Schofield herself deposes precisely to the contrary. There is, as yet, no evidence—whether in the form of admissible hearsay or otherwise—to establish what is alleged as to her “strong adverse reaction”. Even assuming that Ms Schofield said at the meeting of 2 May 2023 what Mr Roberts attributes to her, that cannot fairly be described as a “strong adverse reaction”; particularly in light of Ms Schofield’s direct evidence as to her actual reaction.

61    Similarly, there is nothing to suggest that other members of the union’s executive were negatively disposed to the applicants’ efforts to secure a majority support determination. The high point of the applicants’ evidence seems to be the unparticularised observation of Mr Mujkic that “…a number of [executive] members had a strong negative reaction” to the petition that the applicants had circulated; but even Mr Mujkic goes on seemingly to acknowledge that that reaction (howsoever it manifested itself) concerned “vague allegations about staff being bullied into signing the petition” rather than the initiation of the process itself.

62    Perhaps more to the point, though, is the respondents’ evidence as to why things have transpired (or are about to transpire). As has been noted, each of the respondents’ witnesses attests to having supported the course upon which the union has embarked—specifically, the engagement of Ms Deegan, the referral to her for investigation of the complaints that were levelled against the applicants, the acceptance of the findings that she made in consequence of that investigation, and the subjection of the applicants to the show cause and proposed termination processes that have flowed from those findings. Each deposes that they were so minded because of the nature of the complaints, and the findings that arose from the investigation; and, more specifically, that they were not so minded because of any efforts to which the applicants went to secure a majority support determination (or otherwise to exercise or propose the exercise of workplace rights).

63    There is a logical and obvious consistency to that evidence. It is unnecessary (much less is it possible) that I should make any findings now in that regard and it must be acknowledged that, at trial, it might be that good reason emerges to reject the narrative that the respondents advance. For now, though, it is sufficient to note that the applicants’ narrative, by comparison, fixes upon speculation and theory. In the face of direct evidence to the contrary, I am unable to see how the court now, even on a prima facie case basis, might legitimately accept some nefarious motive on the part of Ms Schofield or others within the union. All the more is that so given that it is asked to do so (again, on a prima facie case basis) as a matter of inference from what is, with respect, the less-than-compelling evidential foundation upon which it is said that Ms Schofield and others exhibited a “strong adverse reaction” to the applicants’ conduct.

64    I am not persuaded, even on a prima facie case basis, that such a reaction is made out on the evidence; but, even if it is, the direct evidence of Ms Schofield and others as to why events have transpired the way that they have make it all-but-impossible, at this juncture, to infer that any adverse action is being or is about to be visited upon the applicants by reason of that reaction (or the exercise or proposed exercise of workplace rights that is said to have occasioned it).

65    I turn, lastly, to the temporal connection between the applicants’ exercise or proposed exercise of workplace rights and the union’s efforts to prosecute (and then act upon findings made in consequence of) the misconduct complaints that were levelled against them. Again, acknowledging the undeniable temporal connection, I do not accept that there is a prima facie case that the former has occasioned the latter. At the risk of repetition, the evidence (necessarily untested, as it is) as to why the union has taken steps to investigate the misconduct that was alleged against the applicants and as to why it has been moved to act as it is alleged to have acted is all-but-overwhelming. So to acknowledge is not to foreclose upon the possibility that, at trial, the applicants might succeed in impugning what the respondents have advanced. But, on the evidence as it presently stands, there is not any real reason to doubt that the investigation process was commenced because it was considered, rightly or otherwise, that the complaints received against the applicants were worthy of investigation.

66    Even on a prima facie case basis—and especially given the very clear and direct evidence to the contrary—I do not consider that the court could properly infer from the timing of events that the applicants’ efforts in securing a majority support determination (or, in the case of Ms Minhas, the making of complaints about how she was treated) were the reason, or a reason, for the adverse action to which they allege that they were subsequently (or are about to be) subjected. With respect, the applicants’ narrative proceeds less as a function of legitimate inference than of speculation and conjecture.

67    Such (untested) evidence as there is at the moment very clearly suggests that the adverse action of which the applicants complain is (or is to be) a function of the union’s national executive having accepted the findings about the applicants’ conduct to which Ms Deegan was drawn. Perhaps those findings are wrong or unfair; but it is not the function of the court in a case such as this to say so and the most that might be said if that were the case is that the court might reject the respondents’ evidence about why things are being (or will soon be) done. Rejection on that basis does not suffice, at an interlocutory stage, to establish that things are being or will be done for reasons that pt 3-1 of the FW Act proscribes.

68    Although there might be a basis for supposing that, at the trial, the court might reject the respondents’ evidence about why things have been or are to be done, there is no evidential foundation apparent to me now upon which I might, at this interlocutory level (and for the purposes of assessing the existence of a prima facie case), legitimately infer that any decision has been or will be taken for a reason or reasons proscribed by pt 3-1 of the FW Act. That being so, I consider that the applicants have not established a prima facie case for the relief that is claimed.

69    I should return to s 361 of the FW Act. That section establishes a rebuttable presumption as to the reason or reasons actuating adverse action in which a respondent is alleged to have engaged. The applicants accept that, by operation of s 361(2), they are unable at this juncture to rely on that presumption to establish the prima facie case upon which their interlocutory application proceeds. Nonetheless, they contend that the existence of the presumption at trial is a consideration to which the court might have regard in assessing the strength of the prima facie case otherwise established.

70    I confess some difficulty in comprehending that submission. It follows, plainly enough, from observations that were made in Police Federation of Australia v Nixon (2008) 168 FCR 340. There, Ryan J—speaking of a predecessor provision—observed as follows (at [69]):

If the effect of s 809[(2)] is to require an applicant to demonstrate, in the absence of any evidence at all from the respondent, a serious question to be tried as to each element of the cause of action, including the respondent’s reason or reasons for the impugned conduct, the applicant may suffer irreparable damage before he or she can be accorded a final trial at which, ex hypothesi, the presumption would enable the cause of action to be made out. I consider that such a restrictive and apparently unjust interpretation should only be given to a provision which occurs in what seems to be a beneficial or facultative legislative scheme if the language of the subsection intractably requires it. In my view, a construction more consonant with the statutory context and history and the preparatory material is that s 809(2) precludes the court from finding, on an application for an interim or interlocutory injunction, even provisionally, by recourse solely to the presumption, that the respondent’s conduct was for a proscribed reason or for reasons that included a proscribed reason. However, I do not construe s 809(2) as preventing the court, in assessing whether there is a serious issue to be tried, from having regard to the availability of the presumption in the final determination of the application. Similarly, I consider that account can be taken of the ultimate availability of the presumption when assessing the respective strengths of the case for the applicant and that for the respondent as part of exercising the general discretion to grant or withhold interlocutory relief. This approach, in my view, is consistent with that long taken by courts of equity in undertaking what are often necessarily limited reviews of evidence in the course of deciding whether to grant interlocutory injunctions. That traditional approach was illustrated in Rockdale Municipal Council v Kogarah Municipal Council (1926) 26 SR (NSW) 552 where Long Innes J said, at 554:

In order to entitle a plaintiff to an interlocutory injunction it is necessary that the Court should be satisfied that there is a serious question to be tried at the hearing, and that the plaintiff has made out a prima facie case; that is, that if the evidence remains as it is, it is probable that at the hearing the plaintiff will get a decree in his favour: Preston v Luck (27 Ch D 497, at 505, 506); Challender v Royle (36 Ch D 425, at 436).

71    In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v O-I Operations (Australia) Pty Ltd [2019] FCA 1272 (hereafter, “O-I”), I had occasion respectfully to express (at [52]) some doubt as to the correctness of those observations:

Again with due respect to those who have adopted a different view, I cannot reconcile the reasoning that Ryan J applied in Nixon with the plain words of s 361(2). It is not necessary that I should describe his Honour’s (and, indeed, their Honours’) reasoning as “wrong” or “plainly wrong” (Undershaft (No 1) Ltd and Another v Federal Commissioner of Taxation (2009) 175 FCR 150, 165-169 [68]-[88] (Lindgren J); Woolworths Limited v BP PLC (2006) 154 FCR 97, 131 [147] (Heerey, Allsop and Young JJ)). It is sufficient that I simply decline to follow it. The meaning of the words of s 361(2) is clear. To have, in the process of assessing whether there is a prima facie case for interim injunctive relief, regard to the existence of the reverse onus for which s 361(1) provides is to proceed as though s 361(1) “appl[ies]” in that context. Yet s 361(2) says that it doesn’t. The applicants cannot, at this juncture, draw any strength from the existence of the reverse onus of proof to which s 361(1) gives effect.

72    It may be that, for present purposes, little turns upon the point. I do not consider that the applicants have established a prima facie case that any adverse action is being or will be taken against them because, or for reasons that include that, they have exercised or proposed to exercise workplace rights. There is, then, nothing the “strength” of which stands to be measured.

73    Regardless (and to the extent necessary), I adhere to the observations that I made in O-I. The effect of s 361(2) is that, in assessing whether or not to grant interim injunctive relief, the court should be persuaded, at a prima facie case level, that there is some basis positively to conclude that adverse action is being or will be taken for a reason that pt 3-1 of the FW Act proscribes. That persuasion must arise wholly without application of the statutory presumption to which s 361(1) gives voice.

74    I turn, then, to the second of the two considerations that guide the court’s discretion to grant interlocutory injunctive relief: namely, the balance of convenience. The relief for which the applicants move is threefold: first, to restrain the union from proceeding to dismiss them; second, to restrain it from continuing to stand them down from their positions; and, third, to restrain it from continuing to subject them to the show cause process that has led the parties to where they now are.

75    Substantially and perhaps for reasons that might easily be understood, the evidence that has been led as to the balance of convenience focuses upon the first of those species of relief. Each of Mr Dixon and Ms Minhas has deposed to the impact that the loss of their employment promises to visit. With respect, that evidence does not rise beyond what the court might typically expect to hear from somebody facing the prospect of imminent unemployment. Both depose to having ongoing expenses that they will struggle to meet and to their concerns about future employment prospects. Neither deposes as to their existing financial situation (although Ms Minhas observes that she “…would likely have to relocate and move out of [her] current rental property”).

76    Instead, the applicants’ evidence focuses upon the undoubtedly significant career impacts that dismissal for reasons of misconduct is likely to visit. Senior counsel for the applicants described the impact as “career destroying”. Although I should not wish to doubt that description, it is to be borne in mind that the applicants will have an opportunity at trial to vindicate themselves. It may transpire that they succeed in the contentions that they foreshadow. It may be that they are reinstated. In that universe, the impact of dismissal now will be substantially if not wholly ameliorated.

77    There are other forms of prejudice that are relied upon. Mr Roberts—who is employed as the Director of the respondent’s logistics team—deposes to the significant impact that the loss of two experienced officials within the union’s logistics team would visit upon the union and its members (or, at least, those whom that team represents). Those are undoubtedly consequences of which the court, in assessing the balance of convenience, should legitimately take account: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 41-42 [65] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).

78    It is suggested that the relative inconvenience to the union is minimal. The applicants submit that they have been subjected to various work restrictions since Ms Deegan’s investigation commenced and that there is no reason why they could not continue to operate under those restrictions until such time as their application can be finally heard and determined.

79    It is also clear that, if dismissed, the applicants stand to be denied the enjoyment of positions in which they have been fortunate to indulge their shared passion for industrial representation. That is undoubtedly a consideration that should inform the court’s assessment of where the balance of convenience lies: Blackadder v Ramsey (2005) 221 CLR 539, 549 [32] (Kirby J), 566-567 [80] (Callinan and Heydon JJ); 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, [47]-[48] (Bromberg J).

80    Against those considerations, of course, is the interest that the union, like any employer, has in enforcing legitimate norms of behaviour amongst its staff and the ways in which they interact with one another. An order requiring that it continue to maintain the applicants’ employment in circumstances where they stand accused of breaching—indeed have been found to have breached—those standards might serve to undermine its position in that respect. Although relevant, I do not consider that that potential undermining of the union’s position weighs strongly upon the court’s assessment of the balance of convenience, at least insofar as concerns the applicants’ impending dismissal (I would readily accept that it looms larger in respect of the relief that is aimed at ending the applicants’ stand downs).

81    Insofar as concerns the applicants’ foreshadowed dismissal, the balance of convenience favours the grant of interlocutory injunctive relief. Nonetheless, I do not consider that it does so so strongly as to overcome (indeed, it is incapable of overcoming) the deficiencies in the prima facie case discussed above.

82    As to the other species of relief, I do not consider that the balance of convenience particularly favours either eventuality. The stand downs have been in place for several weeks. If they were the source of such hardship as might warrant urgent interlocutory relief, one might have expected to see an application sooner. In any event, in circumstances where the applicants have been found (albeit in the contested way described above) to have in effect mistreated their co-workers, I would be slow to accept that the court should interfere with any interim direction requiring them not to work.

83    Similar observations might be made about the continuation of the show cause processes to which the applicants are presently subject. It is unclear precisely what, other than their dismissal, relief of the nature that is sought would restrain. So far as the evidence discloses, it does not appear that there is any other disciplinary sanction that is within the union’s contemplation. Regardless, the show cause process itself is not the source of such hardship as might warrant urgent interlocutory injunctive relief. Again, I would not accept, even had I found otherwise than I have as to the non-existence of a prima facie case, that the balance of convenience favours injunctive relief.

84    In saying so, I acknowledge what senior counsel for the applicants readily conceded: namely, that the “main game” here is to restrain the union from proceeding to terminate the applicants’ employment. Had I been satisfied as to the existence of a prima facie case, I would have accepted that the balance of convenience on that front was sufficient to warrant the relief claimed and I would have granted it.

85    Taking account of the considerations that guide its exercise, I am not satisfied that the court’s discretion to grant interlocutory injunctive relief should, in this case, be exercised. It follows that the application for interlocutory relief should be dismissed. Section 570 of the FW Act precludes the court from making any order as to costs; and that is undoubtedly why none was sought. None shall be made.

86    Instead, the matter shall be referred to the National Operations Registrar for allocation to a docket judge, and thereafter for case management in the usual manner.”

 

Dixon v United Workers Union [2023] FCA 1526 delivered 7 December 2023 per Snaden J