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INDUSTRIAL LAW - dismissal of employee - whether for a prohibited reason- employee a delegate of an industrial association - dismissal followingunauthorised absence from work and attendance at union meeting - applicationfor interlocutory injunction - effect of reverse onusof proof - whetherdocument initiating proceeding must allege particular reason for conduct -whether serious question to be triedthat employee's position as delegate areason for dismissal - whether prohibited reason limited to mere status ofemployee as delegate- balance of convenience - weight to be given to allegedloss of trust and confidence by employer in employee - whether appropriatetoreinstate employee on interlocutory basis - dismissed employee not a party toproceeding

WORDS AND PHRASES - "application"

Federal Court of Australia Act 1976 (Cth)s 23

Workplace Relations Act 1996(Cth) ss 298B, 298G, 298K, 298L, 298T,298U, 298V

Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia[1998] HCA 30,(1998) 195 CLR 1 followed

Davids Distribution Pty Ltd v National Union of Workers[1999] FCA 1108,(1999) 91 FCR 463 referred to

Australian Municipal, Administrative, Clerical and Services Union v AnsettAustralia Ltd[2000] FCA 441 referred to

Emerald Construction Co Ltd v Lowthian[1966] 1 WLR 691referredto

Epitoma Pty Ltd v Australasian Meat Industry Employees Union[1984] FCA 202;(1984) 3FCR 55 referred to

Lumley v Wagner[1852] EWHC Ch J96;(1852) DeGM&G 604, (1852) 42 ER 687 referred to

Warner Brothers Pictures, Incorporated v Nelson[1937] 1 KB 209 referredto

Hill v C A Parsons & Co Ltd[1972] Ch 305 referred to

Baker v Corporation of City of Salisbury(1982) 2 IR 168 referred to

National Union of Workers v Davids Distribution Pty Ltd[1998] FCA 1530referred to

Stevens v Brodribb Sawmilling Co Pty Ltd(1986) 160 CLR 16 referredto

Australian Nursing Federation v Croft Health Care Vic Pty Ltd[2000] FCA93 followed

Independent Education Union v Geelong Grammar School[2000] FCA 557followed

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION v G & K O'CONNOR PTY LTD(ACN 005 934 029)

V 242 OF 2000

GRAY J

12 MAY 2000

MELBOURNE

THE COURT NOTES THATthe applicant by its counsel undertakes to theCourt:

(a)to submit to such order (if any) as the Court may consider to be just forthe payment of compensation, to be assessed by theCourt or as it may direct,to any person, whether or not a party, adversely affected by the operation ofthis interlocutory orderor any continuation (with or without variation)thereof; and

(b)to pay the compensation referred to in (a) to the person there referredto.

THE COURT ORDERS THAT:

1.If, within seven days, Peter Edward Voss state in writing to the respondentthat he is willing:

(a)to become an employee of the respondent pending the hearing anddetermination of this proceeding or further order; and

(b)to accept the obligations attaching to him as such an employee,

the respondent, by itself, its servants and agents, thereafter until thehearing and determination of this proceeding or furtherorder employ PeterEdward Voss on terms and conditions of employment no less favourable than thoseafforded to him immediately priorto the termination of his employment on 10April 2000.

2.In the event that the Court makes a final order in this proceeding withoutordering that Peter Edward Voss be reinstated in hisemployment with therespondent, unless the Court otherwise orders, the employment referred to inpar 1 will cease and determine withoutfurther act by or on behalf of eitherthe respondent or Peter Edward Voss.

3.Liberty is reserved to either party to apply on twenty-four hours notice inwriting to the other party.

Note:Settlement and entry of orders is dealt with in Order 36 of the FederalCourt Rules.

The nature of the application

1This application for interlocutory relief pursuant to theWorkplaceRelations Act 1996 (Cth) ("theAct") came before me as a matter of urgencyon 2 May 2000. I reserved my judgment, because the application raises issuesof some difficulty.

2The applicant is an organisation, registered pursuant to theAct. It is thetrade union for persons employed in the meat industry. The respondent is acorporation which owns and operates an abattoirat Pakenham. From late 1992until 10 April 2000, the respondent employed Peter Edward Voss as a labourer,operating a device calledthe SES-Tec Computer, tagging beef bodies and doingsome trimming of tails. It is common ground between the parties that, on 10April 2000, the respondent terminated the employment of Mr Voss.

3At the outset of the hearing of the application for interlocutory relief,counsel for the applicant applied for leave to amendthe application. Counselfor the respondent did not oppose this course, so I granted leave. The amendedapplication is in the followingform:

This Application is brought by the Applicant pursuant tothes 298T of theWorkplace RelationsAct (Cth) 1996 ("theAct").

A.DETAILS OF CLAIM

On the grounds appearing in the accompanying Affidavit of Peter Voss theApplicant claims against the Respondent relief as follows:-

1.A declaration that the Respondent has engaged in conduct in contravention ofSection 298K of theWorkplace Relations Act 1996 ("theAct") in dismissing fromhis employment Peter Voss ("Voss") who is a member and delegate of theApplicant.

2.An orderpursuant to s 298U(b) of theAct that the Respondentreinstate Voss to his employment.

3.An orderpursuant to s 298U(a) of theAct imposing on the Respondenta penalty by reason of the said contravention of Section 298K of theAct.

4.An orderpursuant to s 298U(c) of theAct that the Respondent payVoss compensation in such amount as to the Court may seem appropriate.

5.Pursuantsection 356(b) of theAct - an orderAn orderpursuant tosection 356(b) of theAct that any penalty, or any part of apenalty, imposed on the Respondent for the said contravention of theAct bepaid to the Applicant.

6.Such further or other orders as to the Court may seem appropriate.

B.CLAIM FOR INTERLOCUTORY RELIEF

AND the Applicant claims by way of interlocutory relief:

1.An order that, until the hearing and determination of this proceeding orfurther order of the Court, the Respondent, by its officers,servants andagents, treat Voss as an employee of the Respondent entitled to terms andconditions of employment no less favourablethan those which appliedimmediately prior to the termination of his employment.

2.Such further or other order as may to the Court seemappropriate.

4Section 298K(1) of theAct provides relevantly as follows:

An employer must not, for a prohibited reason, or for reasonsthat include a prohibited reason, do or threaten to do any of thefollowing:

(a)dismiss an employee; ....

5Section 298L(1) provides that conduct referred to in s 298K(1) is for aprohibited reason if it is carried out because the employeeconcerned:

(a)is, has been, proposes to become or has at any time proposedto become an officer, delegate or member of an industrial association;or

...

(m)in the case of an employee or an independent contractor - hasabsented himself or herself from work without leave if:

(i)the absence was for the purpose of carrying out duties or exercisingrights as an officer of an industrial association; and

(ii)the employee or independent contractor applied for leave

before absenting himself or herself and leave was

unreasonably refused or withheld; or

(n)as an officer or member of an industrial association, has done, or

proposes to do, an act or thing for the purpose of furthering or protecting theindustrial interests of the industrial association,being an act or thing thatis:

(i)lawful; and

(ii)within the limits of an authority expressly conferred on theemployee, independent contractor or other person by the industrial associationunder its rules.

6Section 298T provides relevantly as follows:

(1)Subject to subsection (4), an application may be made to theCourt for orders under section 298U in respect of conduct in contraventionofthis Part.

(2)The application may be made by:

(a)the person, referred to in the provision in question, against whomthe conduct has been, is being or would be carried out; or

(b)in the case of a contravention of this Part by virtue of theoperation of section 298D, 298E or 298F - an organisation of which thepersonis a member; or

(c)in the case of a contravention of this Part by virtue of theoperation of section 298G or 298H - an industrial association of whichtheperson is a member; or

(d)the Employment Advocate; or

(e)any other person prescribed by the regulations.

7By virtue of s 298G(1)(a),Pt XA of theAct (which includes the sections towhich I have referred) applies to conduct by a constitutional corporation. Theterm "constitutionalcorporation" is defined ins 4(1) of theAct, to include abody corporate that is, for the purposes of par 51(xx) of the Constitution, atrading corporation formed within thelimits of the Commonwealth. It appearsthat the respondent is such a corporation. Accordingly,

s 298T(2)(c)applies, and the application in respect of the alleged conduct may be made byan industrial association of which theperson against whom the conduct has beencarried out is a member. The term "industrial association" is defined, for thepurposesof Pt XA, in

s 298B(1). The definition includes an organisation, aterm defined in s 4(1) as meaning an organisation registered under theAct.The applicant is therefore competent to bring the proceeding, although the factthat it, and not Mr Voss, has applied gives riseto difficult issues, which Idiscuss later in these reasons for judgment.

8Section 298U of theAct provides as follows:

In respect of conduct in contravention of this Part, the Courtmay, if the Court considers it appropriate in all the circumstancesof thecase, make one or more of the following orders:

(a)an order imposing on a person or industrial association whoseconduct contravened or is contravening the provision in question a penaltyofnot more than:

(i)in the case of a body corporate - $10,000; or

(ii)in any other case - $2,000;

(b)an order requiring the person or industrial association to reinstatean employee, or to re-engage an independent contractor;

(c)an order requiring the person or industrial association to pay to anemployee or independent contractor, or to a prospective employeeor independentcontractor, compensation of such amount as the Court thinks appropriate;

(d)an order requiring the person or industrial association not to carryout a threat made by the person or association, or not to makeany furtherthreat;

(e)injunctions (including interim injunctions), and any other orders,that the Court thinks necessary to stop the conduct or remedy itseffects;

(f)any other consequential orders.

9At first sight, it might appear that s 298U(e) empowers the Court to grantinterlocutory orders to remedy the effects of allegedconduct in contraventionof a provision ofPt XA. This is not the case, however. InPatrickStevedores Operations No. 2 Pty Ltd v Maritime Union of Australia[1998]HCA 30,(1998) 195 CLR 1, the High Court of Australia held that s 298U(e) onlyempowers this Court to make final orders to remedy the effects of conduct.That is to say, this Court must have found that conduct in contravention ofPtXA of theAct has occurred, before it can exercise the power to make ordersremedying the effects of such conduct. Brennan CJ, McHugh, Gummow,Kirby andHayne JJ expressed this view at [26]. Gaudron J expressed the contrary opinionat [104] - [111]. Callinan J, at [180]- [181], declined to express a view.In that case, the majority also held that s 298U did not constitute anexhaustive code of theavailable remedies in a proceeding in respect of conductalleged to be in contravention ofPt XA.Section 23 of theFederal Court ofAustralia Act 1976 (Cth) provides that:

The Court has power, in relation to matters in which it hasjurisdiction, to make orders of such kinds, including interlocutory orders,andto issue, or direct the issue of, writs of such kinds, as the Court thinksappropriate.

The majority of the High Court of Australia recognised that this Court haspower unders 23 to grant interlocutory orders in a case in which final reliefis sought under s 298U of theAct. See [27] - [30].

10The final provision of theAct relevant for present purposes is s 298V,which provides as follows:

If:

(a)in an application under this Division relating to a person's or anindustrial association's conduct, it is alleged that the conductwas, or isbeing, carried out for a particular reason or with a particular intent; and

(b)for the person or industrial association to carry out the conductfor that reason or with that intent would constitute a contraventionof thisPart;

it is presumed, in proceedings under this Division arising from theapplication, that the conduct was, or is being, carried outfor that reason orwith that intent, unless the person or industrial association provesotherwise.

11Counsel for both parties accepted that I should determine the applicationfor interlocutory relief on the basis that, if theapplicant has made out aserious question to be tried as to whether the applicant would be entitled tofinal relief, I should considerwhether the balance of convenience favours thegrant of interlocutory relief.

The facts

12It is not disputed that Mr Voss was a delegate of the applicant. He wasalso an officer; that term is defined in s 298B(1) oftheAct as including adelegate of an industrial association, which, as I have said, includes anorganisation. The evidence is that theprevious "kill floor" delegate hadresigned his employment with the respondent and that Mr Voss was elected as the"kill floor" delegateby vote of the relevant members of the applicant employedby the respondent in late February 2000. According to Mr Voss's affidavit,Colin Ross, the "shed" delegate, had informed the respondent's management ofthe election of Mr Voss within a couple of days afterit had occurred. Atleast by the middle of March, Peter Roy Allen, the respondent's OperationsManager, was aware that Mr Voss wasa delegate.

13The committee of management of the Victorian Branch of the applicant isconstituted by elected representatives from each of themajor metropolitan andnon-metropolitan meatworks, plus "geographic" and "industry sector"representatives. The committee of managementhas a longstanding practice ofpermitting delegates who are not members of it to observe its proceedings.There are usually morethan twenty observers admitted to a meeting. Often theyare delegates from large meatworks, including the respondent's meatworksatPakenham.

14Prior to March 1999, the respondent had an agreement with the applicant asto the attendance of delegates at meetings of thecommittee of management. Itwas agreed that the senior delegate was permitted to attend meetings of thecommittee of managementand that the senior delegate would notify therespondent prior to attending such meetings. The senior delegate could alsorequestpermission for one extra person to attend committee of managementmeetings. According to Mr Voss's affidavit, two delegates usuallyattended.The extra person was ordinarily either the "boning room" delegate or the "killfloor" delegate.

15From March 1999 until August 1999, there was significant industrialdisputation between the respondent and the applicant, withrespect tonegotiation of a certified agreement to replace an agreement made in 1995,certification of which was set aside by orderof the Australian IndustrialRelations Commission on 26 July 1999. From March to August 1999, therespondent locked out its workforce. On 3 June 1999, the respondent joined theNational Meat Association and thereby became bound by the Federal Meat IndustryProcessingAward 1997 ("the award"). In August 1999, the respondent withdrewits lockout and terminated the relevant bargaining period underPt VIB of theAct. It notified its employees that it was seeking to enter into AustralianWorkplace Agreements underPt VID of theAct. It gave fresh notices and lockedout each of its employees until he or she agreed to sign an AustralianWorkplace Agreement inthe form chosen by the respondent. On 27 September1999, the applicant instituted proceedings in the Australian IndustrialRelationsCommission. On 17 November 1999, the Commission ordered therespondent to cease its lockout.

16Once work resumed in November 1999, the respondent took the view thatattendance of delegates at committee of management meetingswas to be governedby cl 53 of the award, which provided as follows:

53. SHOP STEWARDS

53.1Leave of absence from work to attend any union business shall beallowed by the employer to any employee member of the claimant unionnamed bysuch union provided fair and reasonable notice is given to the employer.

53.2Provided that such leave shall be restricted to one employee at atime in the employment of any one employer and such employee shallnot beentitled to payment for the time so absent from work.

17On 9 December 1999, Colin Ross, the senior delegate, and Chris Symons,another delegate, were absent from work attending a committeeof managementmeeting. Neither gave prior notification to the respondent. On 18 January2000, Mr Allen gave Mr Ross and Mr Symonsformal warnings in relation to theirfailure to give notice and the absence of more than one delegate to attend thecommittee ofmanagement meeting.

18A meeting of the committee of management was scheduled for 30 and 31 March2000. Mr Ross gave Mr Allen notification of his intentionto attend. Mr Allentold him that only one delegate from the respondent's works was allowed toattend under cl 53 of the Award. According to Mr Voss's affidavit, in earlyMarch, he learned from Mr Ross and another delegate of the committee ofmanagement meetingscheduled for 30 and 31 March. Mr Ross and the otherdelegate told him that the company allowed only one person to go to themeeting. They made it clear to him that if he wanted to go it was his owndecision. Mr Voss's affidavit says:

I did not regard it as a big deal. My impression was that itmight be useful for me to understand how the Committee of Managementoperatedbut it was not important to me and I didn't really think about it. I decided Iwould go to work rather than the Committeeof Management meeting.

19Mr Voss has suffered from a recurring back injury related to his work. InDecember 1999, he notified WorkCover of his injury. Between December 1999 and10 April 2000, he was absent from work for four or five days because of theinjury. He claimed compensationfrom WorkCover for two or three of these daysand took the other two days as sick leave. He has received medical treatmentfor theinjury and has consulted a physiotherapist.

20On 30 March 2000, Mr Voss was absent from work. He attended the committeeof management meeting on that day. He did not notifythe respondent that heintended to do so. Mr Ross also attended the committee of management meeting.According to Mr Voss's affidavit,he awoke on the morning of 30 March with hisback so sore that he was unable to work. He telephoned the respondent'ssecurity gateat approximately 5.00 am and left a message that his back wasplaying up, in accordance with the usual procedure for notificationof absencebecause of illness or injury. Later on the morning of that day, Mr Vossdecided that, as he could not work, he mightas well go to the committee ofmanagement meeting. He drove from his home at Kilcunda to Pakenham Station andtook the train toMelbourne. He alternated sitting and standing on the trainbecause of his back injury. There were sufficient breaks in the meetingforhim to rest his back by standing, so that sitting at the meeting did not affectit adversely. The meeting finished at about3.00 pm and he went home.

21On 31 March, Mr Voss went to work as usual and performed his normal duties,although his back was still sore. On the same day,he went to hisphysiotherapist for a visit arranged prior to 30 March. He told thephysiotherapist that he had been off work theprevious day because of his backand asked for a certificate. The physiotherapist examined him and asked himvarious questions aboutthe condition of his back on the previous day. Thephysiotherapist gave Mr Voss a certificate for absence on 30 March.

22On 3 April, Mr Voss was absent from work because of a need to have somedental work performed. As a result of this work, hewas absent from work forthe rest of that week.

23On Wednesday 5 April 2000, Mr Allen had a conversation with Mr Ross, in thecourse of which Mr Ross informed him that Mr Vosshad attended the committee ofmanagement meeting on 30 March. Mr Allen then spoke to Kevin O'Connor, themanaging director of therespondent. They reached the conclusion that Mr Vosshad engaged in misconduct. They believed that he had fabricated the reasonforhis absence from work so as to be able to attend the committee of managementmeeting.

24On 10 April 2000, there was a meeting in Mr Allen's office. Mr Allen andMatt O'Connor represented management. Mr Ross andMr Voss were summoned. Inthe course of the meeting, Mr Allen accused Mr Voss of having deceived therespondent in order to attendthe committee of management meeting. Mr Vossprotested that he had been absent from work because of his back. He producedthe certificatefrom his physiotherapist, which Mr Allen refused to acceptbecause it was backdated. There was some discussion, involving Mr Ross,aboutwhether Mr Voss had attended the committee of management meeting in hisofficial capacity or simply as a member of the union. Mr Allen made referenceto cl 53 of the award. There was discussion of the warnings given to Mr Rossand Mr Symons in January.

25In some respects, there are differences between the account in the affidavitof Mr Voss and the account in the affidavit of MrAllen as to what occurred atthe meeting. For the most part, these differences are not important forpresent purposes. There is,however, one important issue. Mr Voss's versionof the meeting tends to suggest that he was dismissed at the end of it. MrAllen'saccount, however, is clear that he told Mr Voss at the outset that hisemployment had been terminated in accordance with cl 23.5of the award on thebasis of gross misconduct.

A serious question to be tried

26In determining whether there is a serious question to be tried whether MrVoss was dismissed in contravention of s 298K(1)(a)of theAct, the possiblerole of s 298V is of some significance. The latter section has the effect ofreversing the onus of proof in relationto allegations that conduct was carriedout for a particular alleged reason. InDavids Distribution Pty Ltd vNational Union of Workers[1999] FCA 1108,(1999) 91 FCR 463, the FullCourt provided helpful guidance on the effect of s 298V in relation toapplications for interlocutory relief. At [110],Wilcox and Cooper JJ said:

Where there is an application for interim relief in proceedingsunder the Division, the onus remains upon the applicant to demonstratethatthere is a serious question to be tried that the dismissal occurred for aprohibited reason. If a serious question to be triedis made out in respect ofthe other ingredients of the alleged contravention, s 298V operates toestablish there is a serious questionto be tried that the dismissal was for aprohibited reason. It remains available to the employer to demonstrate at theinterlocutorystage that the reason for the dismissal was other than for aprohibited reason. The weight of that evidence may be such as to persuadethecourt there is no serious question to be tried.

27In the present case, counsel for the respondent argued that s 298V had nooperation in relation to the claim for interlocutoryrelief. He drew attentionto the form of the amended application, and to the absence from it of aspecific reference to any particularreason. Although reference is made in par1 of the details of claim in the amended application to the fact that Mr Vossis a memberand delegate of the applicant, the document contains no specificallegation that either of these circumstances was a particular reasonfor therespondent's conduct in dismissing Mr Voss.

28Counsel for the respondent argued that the words "an application" in s 298Vrefer to the document filed in the Court to initiatea proceeding in respect ofan alleged contravention. The word "application" does not appear to be definedanywhere in theAct. The manner in which it is used in s 298T suggests that itmeans the proceeding itself, rather than the document that initiatestheproceeding. Construing the word in the same way in s 298V would not onlyproduce consistency between provisions of the samedivision of theAct, itwould produce a sensible result. There would be absurdity in construing s 298Vto operate, or not operate, according to theterms of the document initiatingthe proceeding. It would be possible to bring into play the provisionreversing the onus of proofby, for instance, amending the initiating document.The manifest purpose of s 298V, to cast onto the person whose state of mind isin issue the onus of proof with respect to that state of mind, would not beadvanced by a narrow, technical construction. I am thereforeof the view thats 298V operates to cast the onus of proof on the respondent when, in the courseof a proceeding in which contraventionofPt XA is alleged, there is anallegation that conduct was carried out for a particular reason.

29In the present case, it is clear from both the initiating document in itsoriginal form, and that document in its amended form,that an allegation wasmade that the respondent had engaged in conduct in contravention of s 298K oftheAct in dismissing Mr Voss. That amounts to an allegation that therespondent had dismissed Mr Voss for a prohibited reason. Attentionwasdirected specifically to the fact that Mr Voss is both a member and a delegateof the applicant. The respondent was in no doubtas to what was allegedagainst it. In his affidavit, Mr Allen said:

Voss was not dismissed because he was a member or delegate of anindustrial organisation, that being the Australian Meat IndustryEmployeesUnion ("AMIEU"). I deny any suggestion that his membership or positionas a delegate of the AMIEU was a reason for his dismissal."

In his opening, counsel for the applicant made it clear that the particularreason alleged against the respondent was that Mr Vosswas a delegate of theapplicant. It was thereby alleged, in the proceeding, which is an applicationunderPt XA, that the respondent's conduct in dismissing Mr Voss was carriedout for a particular reason, namely that Mr Voss was a delegateof theapplicant. Section 298V therefore provides assistance to the applicant inestablishing that there is a serious question tobe tried.

30Given that it is common ground that Mr Voss was a delegate of the applicantand that he was dismissed from his employment, theeffect of s 298V is that itis to be presumed that the respondent dismissed him for that reason, even ifthere were other reasonsas well. Only if the respondent could persuade theCourt otherwise at the interlocutory stage would it avoid a finding that thereis a serious question to be tried.

31The respondent has endeavoured to do this. I have quoted the express denialfrom Mr Allen's affidavit. That is not the endof the matter. It is not clearfrom Mr Allen's affidavit that he was the person who made the decision todismiss Mr Voss. Relevantly,his affidavit is in the following terms:

After speaking to Ross, I then spoke to O'Connor about Voss'[sic] conduct in attending the committee of management meeting whilstpurportedly unwell on 30 March 2000. I discussed with O'Connor the nature ofthe conduct and we agreed that on the information inour possession at thattime, Voss had engaged in misconduct. We believed that Voss had fabricated thereason for his absence soas to be able to attend the committee of managementmeeting. It was my belief that Voss knew that he would not be permitted toattendif he requested to do so.

The affidavit is silent as to whether Kevin O'Connor, Mr Allen, both of them,or some other person, made the decision to dismiss. The passage which I havequoted earlier, which contains the denial, does not shed any light on this. IfMr Allen were the soledecision-maker, he could have sworn as to his own stateof mind. He could have given evidence on affidavit, for the purposes ofaninterlocutory proceeding, on information and belief as to the state of MrO'Connor's mind, or of any other relevant person's mind. He did not do this.

32In any event, there are circumstances suggesting that, aftercross-examination at a trial, there is a real chance of a findingof fact thatone of the reasons for the dismissal of Mr Voss was that he was a delegate ofthe applicant. It may be true that therespondent employs a number of membersof the applicant. It certainly has in its employ delegates of the applicantother than MrVoss. As far as the evidence goes, there has been no attempt bythe respondent to dismiss those other delegates. The respondentwould no doubtbe aware that any attempt to rid itself of union delegates and members wouldbring it into conflict with the law. It is nonetheless possible that anemployer in the respondent's position, presented with what it saw as anopportunity to assertitself by ousting one delegate, would do so.

33There is evidence that, in recent times, the respondent's attitude to theapplicant has hardened. As I have said, for a lengthyperiod the respondentlocked out its employees. It offered them a return to work only upon termsthat they entered into individualagreements in a form chosen by therespondent. This suggests an abandonment of the respondent's previous practiceof dealing withthe applicant in negotiating terms and conditions of employmentfor its employees. In conjunction with this, on its own evidence,therespondent adopted a harder line in relation to the attendance of delegates atcommittee of management meetings than it had previouslyadopted. It is truethat the award provided for the attendance of only one delegate at suchmeetings. The award did not preventthe respondent granting permission to morethan one delegate to attend a committee of management meeting, as it had donein the past.

34I must also have regard to the manner in which the dismissal of Mr Voss wascarried out. Although this was the first occasionon which he had, as therespondent saw things, absented himself from work in order to attend acommittee of management meeting, andalthough he was only a recently appointeddelegate, the respondent chose not to give him a warning. It had previouslygiven otherdelegates warnings in respect of similar conduct. On Mr Allen'sevidence, he and Kevin O'Connor reached the conclusion that Mr Vosshaddeceived the respondent about his state of health, for the purpose of attendingthe committee of management meeting, prior to10 April. They reached thatconclusion after what was plainly an inadequate investigation. In particular,they gave Mr Voss noopportunity to contradict the information and theassumptions on which they relied, before reaching the conclusion. In themeetingon 10 April, Mr Allen adhered to this conclusion, although Mr Vossprovided information which, if accepted, would have contradictedtheconclusion.

35The hardening attitude of the respondent towards the applicant, and thedetermination to dismiss Mr Voss without proper investigationof his conduct,give rise to a suspicion that the respondent might have been seizing anopportunity to dismiss Mr Voss because hewas a delegate of the applicant andit did not want him to be a delegate of the applicant. These circumstancesgive rise to a seriousquestion to be tried as to whether the respondentdismissed Mr Voss for the reason that he was a delegate. They would give riseto such a question even if the applicant were not able to avail itself of theprovision relating to onus of proof in s 298V.

36As counsel for the respondent argued, the applicant could not assert that MrVoss had been dismissed for either of the prohibitedreasons referred to in s298L(1)(m) or (n). In the case of (m), it is clear that Mr Voss had notapplied for leave before absentinghimself from work, and no issue of whetherleave was unreasonably refused or withheld arose. In the case of (n), theapplicant didnot allege that what Mr Voss did in attending the committee ofmanagement meeting was within the limits of an authority expresslyconferred onhim by the applicant under its rules.

37It is clear that the prohibited reason that a person is a delegate of anindustrial association, specified in s 298L(1)(a), isnot confined to the merestatus of the person concerned as a delegate. A dismissal of a delegate may befor that prohibited reasonif the employer was motivated by dislike of themanner in which the delegate has performed duties as delegate, or of activitiescarriedout by that delegate which have added significance because they arecarried out by a delegate. The issue is discussed at lengthby Merkel J inAustralian Municipal, Administrative, Clerical & Services Union v AnsettAustralia Ltd[2000] FCA 441, at [63] - [78], where his Honour followed thedecision of the High Court of Australia inGeneral Motors Holden Pty Ltd vBowling(1976) 12 ALR 605. Conduct of an employer may also be for theprohibited reason that the employee concerned was a delegate if, for instance,a reasonfor the dismissal of a delegate was that the employer did not wantthat particular person to be a delegate. The employer might beprepared tolive with delegates generally, or with another delegate, but might be concernedthat a particular person has been chosento represent the interests of itsemployees. In the circumstances of the present case, the fact that the acts ofMr Voss cannotgive rise to allegations that the respondent dismissed him forthe prohibited reasons in s 298L(1)(m) and (n) does not mean thattheallegation that it dismissed him for the prohibited reason in s 298L(1)(a) isunsustainable.

38I am satisfied that the applicant has made out a serious question to betried as to whether the respondent dismissed Mr Vossfrom his employment byreason of the fact that he was a delegate of the applicant.

Balance of convenience

39On the balance of convenience, there is not a great deal of material. MrVoss has sworn that he is the main breadwinner forhimself and his wife; theirchildren are independent. His wife has a part-time job, the income from whichvaries from $80.00 to$300.00 per week. Their savings were reducedsubstantially during the lockout in 1999 and have not recovered. His wife'sincomeis insufficient for the couple's living expenses. Mr Voss expects thatany unemployment benefits he receives will be reduced tothe extent of hiswife's income.

40There is no evidence that the respondent would have any difficulty fittingMr Voss back into its workforce. It does not assertthat it would. There isno evidence of the size or the manner of organisation of the workforce at therespondent's works. Thereis in evidence a page from the attendance bookmaintained by the respondent, relating to 30 March, the day on which Mr Vosswas absentand on which he attended the committee of management meeting. Thispage indicates that, on that day, eight others contacted therespondent tosignify that they would not be attending for work and three more indicated thatthey would be starting late. If therespondent has enough workers, and enoughflexibility, to cope with this number of absentees, it should have littledifficulty infitting Mr Voss back into its workforce.

41The only factor expressly relied upon by the respondent in relation to thebalance of convenience is that it says there is nolonger a relationship oftrust and confidence between the respondent and Mr Voss. Mr Allen's affidavitasserts that the respondentbelieves that Mr Voss intentionally lied about whyhe could not attend work on 30 March and does not believe that the relationshipof employer and employee can be recommenced successfully because of thisbreakdown of trust. I do not attach great weight to thisfactor. It isunclear from Mr Allen's affidavit whether the state of mind he attributes tothe respondent is the state of mind ofMr Allen alone, of Mr Allen and KevinO'Connor, or of any other manager or supervisor.

42The law relating to the need for trust and confidence in an employmentrelationship was developed at a time when employment invariablyinvolved aclose personal relationship between employer and employee. The advent ofcorporate employers has diminished the importanceof this element of theemployment relationship. A corporation has no sensitivity. The crucialquestion must be what effect, ifany, loss of trust by a manager in an employeeis likely to have on the operation of the workplace concerned. It might bemore significant,for instance, to know the name of Mr Voss's immediatesupervisor and to know the attitude of that person towards him. If theimmediatesupervisor had no trust in Mr Voss, it might also be relevant to knowwhether it would be possible to place Mr Voss in another partof the workplace,under another supervisor, who did have such trust. It would also be relevantto know what effect any lack of trustby any manager or supervisor in aparticular employee might have on the conduct of operations in the workplace.There is no evidenceas to any of these matters.

43Resort to an assertion that trust and confidence in a particular person havebeen lost cannot be a magic formula for resistingthe compulsory reinstatementin employment of the particular person. The circumstances of this case providea good example. Asthe evidence stands, Mr Allen and Kevin O'Connor came totheir conclusion that Mr Voss had deceived the respondent without makingproperinquiry into the circumstances of his absence and his attendance at thecommittee of management meeting. In particular, theyreached this conclusionwithout having made any inquiry of Mr Voss himself, to ascertain whatinformation he might have been ableto give to enable a judgment to be formedabout the significance of those events. Once that conclusion was formed, itappears thatMr Allen has adhered to it as if it were an absolute truth. Thediscussions at the meeting of 10 April do not appear to have causedhim towaver in his belief. Perhaps more surprisingly, the evidence by way ofaffidavit of Mr Voss does not appear to have causedMr Allen even to have haddoubts about whether he might have mischaracterised Mr Voss's conduct. I amnot suggesting that Mr Allenwas bound to accept all that Mr Voss said in themeeting of 10 April, or all that he said in an affidavit. A rational personwouldhave been forced to concede that there might have been another side tothe story and that a firm conviction that Mr Voss had deceivedthe respondentmight be unwarranted at this stage. Blind adherence to a belief formed oninadequate material, in the face of otherevidence, does not justify beingregarded as a weighty factor in assessing the balance of convenience.

44The balance of convenience favours the conclusion that, if possible, Mr Vossshould return to his employment with the respondentpending the hearing anddetermination of this proceeding.

Should an injunction be granted?

45Such a finding does not lead automatically to the conclusion that aninjunction should be granted. The grant of any injunctionis a matter ofdiscretion. The notion that someone should be reinstated in employment on atemporary basis gives rise to some difficulties.

46In the past, courts have tended to refrain from using the remedy ofinjunction to require one person to enter into, or to continue,an employmentrelationship with another. This reluctance might stem from the presence of asupposed rule that courts will not grantspecific performance of contracts ofemployment, a rule which has proved less than absolute. There has been somereadiness to grantinjunctions restraining the taking of industrial action, theeffect of which is to force those taking the industrial action to resumework.See, for instance,Emerald Construction Co Ltd v Lowthian[1966] 1 WLR691 andEpitoma Pty Ltd v Australasian Meat Industry Employees Union[1984] FCA 202;(1984) 3 FCR 55. Courts have indirectly enjoined employees to continue workingfor particular employers by granting injunctions to enforce obligationsofthose employees to refrain from working for anybody else. SeeLumley vWagner[1852] EWHC Ch J96;(1852) DeGM&G 604, (1852) 42 ER 687 andWarner BrothersPictures, Incorporated v Nelson[1937] 1 KB 209. In some circumstances,courts have been ready to grant injunctions preserving employmentrelationships. An employer might be orderedto refrain from treating aparticular act as having brought about the termination of a contract ofemployment. See, for instance,Hill v C A Parsons & Co Ltd[1972]Ch 305. Another example of such an injunction, granted on an interlocutorybasis, isBaker v Corporation of City of Salisbury(1982) 2 IR 168.

47In cases likeHill andBaker, the obligations of the employerand the employee, upon which their continuing relationship depends, are notdictated by the injunctionitself. They continue to be governed by thecontract of employment and by rules of law from other sources, bearing on theemploymentrelationship. Thus, an employer enjoined to refrain from treating apurported act of dismissal as terminating the contract of employmentremainsfree to dismiss the employee concerned, if the occasion arises, by whateverlawful means are open. The employer and theemployee concerned remain free tomanage their relationship in the normal way, and free to vary it if they seefit. The relationshipremains a consensual one, the only compulsion beingagainst viewing it as having been terminated by a particular past act.

48In recent times, there has been a significant development in cases involvingalleged contraventions by employers of s 298K oftheAct. In several cases,injunctions have been granted which have the effect of reinstating employees intheir employment, pending thehearing and determination of the proceedingsconcerned.

49The first of these cases wasNational Union of Workers v DavidsDistribution Pty Ltd[1998] FCA 1530. In that case, following the takingof industrial action, an employer purported to terminate the employment offifty-two employeeswho were involved in a picket. North J grantedinterlocutory relief, including an order in the following terms:

Until further order, the respondent, Davids Distribution Pty Ltdby itself, its servants and agents, treat all persons named in theschedule tothis order as employees of the respondent with continuity of service save andexcept for the purpose of payment of wages;....

His Honour also restrained the employer from terminating the employment of eachof those employees and of another employee. TheFull Court dismissed an appealfrom these orders. SeeDavids Distribution Pty Ltd v National Union ofWorkers[1999] FCA 1108,(1999) 91 FCR 463. Counsel for the applicant inthe present case stated that the interlocutory injunction sought in par 1 ofthe claim for interlocutoryrelief in the amended application was modelled onthe order granted inDavids.

50There is one significant difference between the facts inDavids andthe facts in the present case. InDavids, there was an issue as towhether the purported dismissals of the fifty-two employees had been effectiveto terminate their employment. It is possible that, in ordering the employerto treat the fifty-two employees as employees, North J was endeavouring toensurethat this issue was not foreclosed until the proceeding was determined.In other words, it is possible that the injunction was inthe same category asthose granted inHill andBaker. I note that his Honour enjoinedthe employer from terminating the employment of those persons. This supportsthe proposition thatthere was a real issue as to the effectiveness of theprevious purported dismissals. It is, however, significant that, at leastinone respect, the obligations of the employer with respect to the fifty-twopersons flowed from the injunction and not from thecontract of employment orfrom any other statutory or legal incident attached to the employmentrelationship. The employer was obligedto treat the fifty-two persons asemployees; it was not free to dismiss them without further order of thecourt.

51In the present case, it is common ground that Mr Voss was dismissed. Thereis no live issue as to whether the act done by therespondent for the purposeof terminating Mr Voss's contract of employment was effective or otherwise.Indeed, the very complaintwhich the applicant makes is that the conduct of therespondent amounted to a dismissal of Mr Voss. In such a context, an ordermodelled on that made inDavids would give rise to ambiguity. It is notclear to me what would be achieved by an order directing the respondent totreat Mr Vossas an employee of the respondent. Would this mean that he becamean employee, his previous employment having ceased? Or would itmean that hedid not become an employee, but was to be treated as if he did become one? Oneither view, problems might arise. Ifthe effect of the injunction were thatMr Voss did not become an employee, but that the respondent was obliged totreat him as ifhe were, the mutual obligations which characterise anemployment relationship would not exist in a legal sense. For instance, MrVoss would not be required to obey all lawful and reasonable instructions ofthe respondent, as an employee is normally obliged todo. Nor would Mr Vosshave all of the normal protections available to him. Whilst there might be nodifficulty about the respondentowing a duty of care to Mr Voss as a personworking at its premises (as to which seeStevens v Brodribb Sawmilling CoPty Ltd(1986) 160 CLR 16), there might be other duties which, if therespondent failed to perform them, Mr Voss would have no right to enforce. IfMr Vosswere to suffer injury (such as an aggravation of the existing injury tohis back) in the course of his work, WorkCover might declineto compensate himon the basis that he was not an employee, but merely a person whom therespondent was obliged by an order of theCourt to treat as an employee. Itwould clearly be unsatisfactory to place someone into a newly-createdrelationship of this kind,as distinct from using orders of the kinds made inDavids to preserve a pre-existing relationship as to the termination ofwhich there was doubt.

52On the other hand, if the order in the present case were to be construed asan order reinstating Mr Voss as an employee of therespondent, other problemsmight arise. The most obvious one is that, if the applicant were to beunsuccessful in its claim forfinal relief in this proceeding, the employmentrelationship between Mr Voss and the respondent, having been revived, wouldstillbe in existence. It might turn out that, although victorious in theproceeding, the respondent could not prevent Mr Voss from continuingto be itsemployee without dismissing him again. The further dismissal might itself giverise to allegations that it was unlawful,or might be susceptible of a remedypursuant to Div 3 ofPt VIA of theAct.

53These considerations tend against making an order of the kind sought by theapplicant in the present case. There is, however,authority tending in favourof making such an order. InAustralian Nursing Federation v Croft HealthCare Vic Pty Ltd[2000] FCA 93, Heerey J made an order in the followingterms:

Pending the hearing and determination of the matter or furtherorder, the respondents reinstate the second, third, fourth, fifth andsixthapplicants .... to their employment, being employment undertaken by themimmediately prior to 27 January 2000 in respect ofthe second to fifthapplicants and prior to 7 December 1999 in respect of the sixthapplicant.

In that case, the relevant applicants were employees who had been dismissed,allegedly for one or more prohibited reasons of thekinds referred to in s298L(1) of theAct. Heerey J's order unambiguously put them back in theiremployment. His Honour did not discuss what might be the fate of thatemploymentif final relief were not granted in that proceeding.

54InIndependent Education Union v Geelong Grammar School[2000] FCA557, Finkelstein J restrained an employer from acting upon a notice terminatingthe employment of one of its teachers. Despite the formof the order, it isclear from his Honour's reasons for judgment that the teacher's employment hadbeen brought to an end. His Honoursaw the issue in terms of reinstatement ona temporary basis.

55It therefore appears that this Court has no reluctance to use the remedy ofinjunction as a means of reinstating, on an interlocutorybasis, employees whohave been dismissed in circumstances giving rise to a serious question as towhether they will be entitled tobe reinstated in due course. So far, theCourt does not appear to have adverted to possible difficulties attending thecreationof a new relationship of employer and employee by means of aninjunction. Once some of these difficulties are appreciated, an ordercan beframed in terms that will at least alleviate them. An express reservation ofliberty to apply will enable an employer toreturn to the Court if, forinstance, the employer desires to dismiss the employee afresh for reasons thatare totally unconnectedwith the subject matter of the current proceeding. Theproblem of termination in the event that final relief is not granted couldberesolved by providing in the order that the artificially created employmentrelationship is to cease, in the absence of furtherorder (such as a staypending appeal) if final relief is not to be granted.

56One further issue arises in the present case. In each ofCroft HealthCare andGeelong Grammar School, the persons reinstated byinjunction pending determination of the relevant proceedings were parties tothe proceedings. They werethemselves seeking the orders which were made. Itcould be assumed that they were therefore willing to enter into employmentrelationshipswith their former employers and to abide by the obligationsplaced on them by and in relation to those relationships. In the presentcase,Mr Voss is not a party to the proceeding. The orders which are sought aresought by his union, the only applicant. AlthoughMr Voss has sworn anaffidavit, in which he says that he is "very upset and concerned about beingterminated", he nowhere says thathe wishes to be reinstated, either as amatter of final relief or on an interlocutory basis. He nowhere says that heis preparedto enter into a fresh employment relationship with the respondent,or that he is prepared to accept the obligations cast on him byand in thecourse of that relationship. InDavids, the fifty-two employees inrespect of whom the injunction was granted were not parties to the proceeding.It seems to have beenassumed that they would be willing to return to theiremployment. I do not think that I should make that assumption in the presentcase. Rather, any order should be conditional upon Mr Voss indicating to therespondent in writing that he is willing to becomeits employee again, and toundertake his normal obligations as an employee.

57The applicant by its counsel has given an undertaking in damages in theusual form. This will safeguard the respondent in theevent that the applicantfails in its claim for final relief and the respondent suffers any damage. Itmay be that it will be difficultto determine what, if any, damage therespondent will have suffered if that should occur. In the ordinary course,the respondentwill have had the benefit of the labour of Mr Voss, in returnfor paying him normal remuneration. Any difficulty involved in suchacalculation is not a heavy deterrent to the granting of an injunction.

58In all of the circumstances, I am of the view that I should grant aninjunction. It will not be in the terms sought by the applicantbut will beframed in an endeavour to overcome some of the difficulties I have identifiedwith the form of order proposed. In particular,it will be framed so as tomake it clear that the relationship forced upon the respondent is arelationship of employer and employeewith Mr Voss. Should this give rise toany difficulty, either party will be able to exercise liberty to apply. MrVoss will bedisadvantaged in this respect, as he is not a party to theproceeding. That deficiency could yet be overcome.

59The orders I will make will note the applicant's undertaking in damages andprovide as follows:

1.If, within seven days, Peter Edward Voss state in writing to the respondentthat he is willing:

(a)to become an employee of the respondent pending the hearing anddetermination of this proceeding or further order; and

(b)to accept the obligations attaching to him as such an employee,

the respondent, by itself, its servants and agents, thereafter until thehearing and determination of this proceeding or furtherorder employ PeterEdward Voss on terms and conditions of employment no less favourable than thoseafforded to him immediately priorto the termination of his employment on 10April 2000.

2.In the event that the Court makes a final order in this proceeding withoutordering that Peter Edward Voss be reinstated in hisemployment with therespondent, unless the Court otherwise orders, the employment referred to inpar 1 will cease and determine withoutfurther act by or on behalf of eitherthe respondent or Peter Edward Voss.

3.Liberty is reserved to either party to apply on twenty-four hours notice inwriting to the other party.

Associate:

Dated: