AMIEU v Export Meat Processors Pty Ltd

REASONS FOR JUDGMENT 1 Before the court is an application for interlocutory orders. The applicant is an organisation of employees representing meat workers. The first respondent, Export Meat Processors (EMP), employed members of the applicant in a boning room in Brooklyn. 2 The applicant alleges that EMP has acted in breach of s 298K(1)(a), (b) and (c) of the Workplace Relations Act 1996 (Cth) (the Act). That section provides: "298K(1) [Prohibited reasons for certain conduct by an employer] An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice …" 3 The applicant relies on s 298L(1)(a) and (h), which provides: "298L(1) [Interpretation] Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee …: (a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or … (h) is entitled to the benefit of an industrial instrument or an order of an industrial body" . 4 The applicant seeks relief under s 298U(e), which provides: "298U In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders: (e) injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects" . 5 The proper approach to considering whether orders should be made is to determine whether there is a serious issue to be tried, and whether the balance of convenience favours the making of orders. These two aspects may need to be considered together, rather than as rigidly separate issues. 6 I turn to the question of whether there is a serious issue to be tried. 7 Prior to 20 June 2001, there was a meat slaughtering and boning complex at 30 Industry Park Drive, Brooklyn. One of the facilities was a boning room known as the 'P & R Room'. At that time, EMP operated two chains in the P & R Room. It employed twenty-one boners on each chain and about forty labourers, a total of about 110 employees. The two chains operated a morning shift. The employees working in the P & R Room were mostly members of the applicant. They were employed pursuant to the terms of the P & R Meats and Australasian Meat Industry Employees' Union Boning Agreement 1998 (the P & R Agreement). The beef which was boned in the P & R Room was to fulfil a contract, which Belandra Pty Ltd (Belandra), which is the second respondent and a company associated with EMP, had with Coles Supermarkets. 8 On 20 June 2001, a fire destroyed the facilities at Brooklyn, other than the P & R Room. 9 After the fire, EMP introduced an afternoon shift at Brooklyn. The afternoon shift was operated by casual labour supplied by a labour hire company, ESP Tecforce Pty Ltd (ESP) (the labour hire workers). The labour hire workers were not members of the applicant. 10 Gradually work was taken from the morning shift and given to the afternoon shift. As a result of the reduction in work for the morning shift, the morning shift workers, who were paid according to the amount of beef processed, suffered a reduction in income. One deponent said that his earnings declined from $1150 per week to about $600 per week. EMP offered voluntary redundancies. Many employees on the morning shift, it is alleged, were forced to leave because of the transfer of work to the afternoon shift. By November 2002, the number of workers employed by EMP on the morning shift had fallen to about forty. 11 For the remaining workers on the morning shift the reduction in work meant both a reduction in pay, and a reduction in possible redundancy payments, which are calculated by reference to pay levels. 12 In August 2002, the second chain on the morning shift was disbanded. Shortly afterwards it was restarted using more labour hire workers. By 12 September 2002, the second chain was processing beef and was given more work than the first chain. 13 After the fire, Belandra used other slaughtering facilities, including facilities owned by competitors, to provide the beef for its Coles contract. 14 In March 2002, the third respondent, Tasman Group Services Pty Ltd (TGS), which was a company associated with EMP and Belandra, purchased a meatworks at Kyle Road, Altona. 15 Belandra entered into a contract with TGS for TGS to provide slaughtering services to fulfil the Coles contract. TGS contracted with Larburg Pty Ltd (Larburg) to operate the Altona site. Larburg is operated by a former manager of Belandra. Larburg arranged for the supply of workers for the Altona site from the labour hire company, ESP. 16 Then, on about 11 November 2002, the morning and afternoon shift labour hire workers were transferred to the Altona site to commence boning work there. The employees of EMP on the morning shift remained at Brooklyn. 17 On 19 November 2002, EMP terminated the employment of thirty-five direct employees who were still working at Brooklyn on the first chain (the EMP employees). 18 The applicant alleges that the reduction in work of the EMP employees and their dismissal was for a prohibited reason, namely, because they were members of the applicant and/or because they had the benefit of the P & R Agreement. 19 They point to what they allege was a history of industrial problems on the Brooklyn site and the role of the applicant in those problems. They also point to the conduct of EMP in replacing union with non-union labour. 20 Against this, Mr Pierre Cabral, the Managing Director of EMP, expressly denied the existence of any prohibited reason. He said that the employment of EMP employees was terminated because there was a strike at Altona on the slaughter floor, and, hence, there was no stock available for the boners at Brooklyn to work on. He indicated various reasons for transferring work away from the employees of EMP, including skill deficiency, absenteeism, reduction in the requirements of Coles, and an unwillingness of the employees to accept change. The applicant filed affidavits contesting the existence of these factors. 21 Counsel for the respondents recognised that the onus was on the respondents to show that there was no prohibited reason. Section 298V of the Act provides: "298VIf: (a) in an application under this Division relating to a person's or an industrial association's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and (b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise." 22 In Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550; [1999] FCA 1108, Wilcox and Cooper JJ said at pars 109-110: "[109] … the Act provides in s 298V a statutory presumption that the link exists in certain circumstances. Under s 298V in proceedings under Div 6 of Pt XA of the Act for a contravention of Pt XA, an allegation in those proceedings of conduct for a prohibited reason is sufficient for it to be presumed that the conduct was engaged in for that reason unless the employer proves to the contrary. Section 298V does not relieve the applicant in proceedings under Div 6 of Pt XA of the Act from proving on the balance of probabilities each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise … [110] Where there is an application for interim relief in proceedings under the Division, the onus remains upon the applicant to demonstrate that there is a serious question to be tried that the dismissal occurred for a prohibited reason. If a serious question to be tried is made out in respect of the other ingredients of the alleged contravention, s 298V operates to establish there is a serious question to be tried that the dismissal was for a prohibited reason. It remains available to the employer to demonstrate at the interlocutory stage that the reason for the dismissal was other than for a prohibited reason. The weight of that evidence may be such as to persuade the court there is no serious question to be tried." 23 On the material presently before the Court, as outlined above, there is a serious question to be tried that EMP has acted in breach of s 298K of the Act. It must be stressed that this is a finding made for the purposes of this interlocutory application. It does not reflect a final view on the ultimate merits of the case. It is based on evidence which is necessarily incomplete. 24 I now turn to consider the balance of convenience. 25 The applicant seeks orders that would return the EMP employees to their jobs of boning the Coles beef until the trial of the action. 26 The applicant submitted that if the reason for the termination was the strike at Altona, then, as that strike was over, the work should be now done by the EMP employees as before. Further, there was extensive evidence of hardship faced by the EMP employees by reason of the terminations. 27 Then, it was said that the termination was undertaken without the consultation required by cl 2.8.2 of the P & R Agreement. Had EMP given some notice there could have been discussion about the circumstances of the employees affected. 28 The respondents, as I understand it, contended that the question is whether the ability of the Court to exercise jurisdiction would be frustrated if no interlocutory orders were made: Patrick Stevedores Operation No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at 35. They submitted that there was very little likelihood that the Court would order reinstatement at trial, and, hence, it should not make interlocutory orders to that effect. Reinstatement would not be ordered because compensation would be a suitable remedy, EMP is no longer doing boning for Belandra, and to order reinstatement would cause hardship to the labour hire workers who are now doing boning for Larburg, which has a contract with TGS, which has a contract with Belandra to bone the Coles beef. Further, at trial it is likely to be found that the operative cause of the termination was the strike: Maritime Union of Australia v CSL Australia Pty Ltd [2002] FCA 513 at pars 54 -5. 29 As this is an interlocutory application and the trial of the matter will occur fairly soon, there is a need for expedition in resolving the interlocutory application. It is therefore not necessary or desirable to delay the matter further to provide more extensive reasons. 30 I have taken into account the arguments raised in relation to the balance of convenience. In the end there are several particularly significant factors. One such factor is that any orders will last for a relatively short time because the trial will occur in March 2003. Another factor is the hardship which will be suffered by the EMP employees if they are not reinstated. Against this demonstrated hardship, there is no evidence of hardship to the labour hire workers who have been boning the Coles beef since 19 November 2002. They are engaged as casuals. It is, thus, part of their expected conditions of employment that their work may come to an end at short notice. Similarly, there is no evidence that Larburg or ESP have contractual entitlements to provide the labour for the Coles beef boning work. In any event, there is no evidence of hardship to these companies which outweighs the hardship to the employees. The applicant has proffered an undertaking as to damages which could be considered if these companies do suffer such damage. 31 The applicant sought orders restraining EMP from obtaining labour for boning from employees other than EMP employees. On Tuesday 10 December 2002, when the interlocutory application was first argued, counsel for EMP submitted that the Court should not make the orders sought because EMP was no longer doing the Coles beef boning. In response, the applicant sought and obtained an adjournment in order to add Belandra and TGS as parties. It also amended the application to seek orders which would ensure, by orders made against Belandra and TGS, that EMP retained sufficient Coles beef boning work to employ the EMP employees. 32 In the course of the hearing today, and partly in response to my questioning, the applicant proposed orders which would ensure a specified minimum amount of work for the EMP employees if reinstatement were ordered. Counsel for the respondents argued strongly against the detailed prescriptive orders proposed. 33 As I stated earlier, there is a serious issue to be tried. I have also formed the view that the balance of convenience favours the making of orders. I accept that at present the proposed highly prescriptive orders sought by the applicant are not appropriate. Rather, it is sufficient to order that the EMP employees be reinstated to their former employment upon the same terms and conditions as applied to them immediately prior to their dismissal. The problem with the detailed orders sought by the applicant is that they may oblige EMP to meet obligations beyond its power to achieve. However, the intent of the interlocutory orders is that the EMP employees be returned to work and be provided with a reasonable amount of work in the circumstances, such that they might earn a proper living until the trial of the action. Counsel for the respondents accepted that it would not be in the spirit of the orders, for instance, for the EMP employees to be stood down with no work to do in the current circumstances in which there is more than sufficient beef boning for the Coles contract to keep the EMP employees engaged on that work. 34 The primary reason which persuades me against making more detailed orders is that the parties will have liberty to apply to me on short notice for any modification of the orders, if required. I will make myself available between now and March for any such urgent application. This is not, however, a signal that the court should be the first port of call if issues arise in operating the interim arrangements. In the first instance, the parties should conscientiously try to resolve any problems themselves. The court should be the last resort.