Australian Nursing Federation v Croft Health Care Vic Pty Ltd

REASONS FOR JUDGMENT 1 I propose to grant the interim injunction sought. Notwithstanding what was said in the respondents' submission, there is express jurisdiction to do so conferred by s 298U(e) of the Workplace Relations Act 1996 (Cth). 2 The dominating feature in this matter, to my mind, is s 298V, which in effect reverses the onus in proceedings under Division 6 of Part XA. The plain words of that section indicate to me that it is an allegation which is sufficient to put an onus on the respondents. It is not necessary for an applicant to raise evidence in support of that allegation. In other words, the section is an averment provision, familiar in other areas of the law. An allegation is made and the law says that it is then up to a respondent to raise evidence to rebut the allegation. 3 I have to be satisfied that there is a serious issue to be tried but I approach that task in the light of the reversal of the onus imposed by s 298V. Even apart from the onus, it does seem to me that there is a triable issue raised. I do not suggest that the evidence is overwhelming but it does, arguably at least, raise the circumstantial case of the respondents' hostility to having to carry out their obligations under the Award and the agreements referred to to treat transferring employees under public employment conditions. 4 There is some force also, in my opinion, in the submissions of counsel for the applicants that the reasons advanced by the respondents are not persuasive. Those reasons are set out in paragraph 7 of the respondents' written submissions and it is not necessary to repeat them in this judgment. 5 It does not seem to me a conclusive argument against the grant of the injunction that the applicants could have sought relief in the Australian Industrial Relations Commission. In any event, the nature of the substantive right asserted here is not the same as could be sought in the Commission. 6 As to the balance of convenience, I am influenced by the fact that it seems likely that there can be a trial of this matter some time in the week commencing 21 February, that is, the week after next. I have regard to the evidence on behalf of the applicants that their personal domestic arrangements in virtually all cases have created hardship for them and moreover, if they return to work as the result of an injunction it does not seem to me that there would be any significant hardship imposed on the respondents. It does seem that the applicants' work would not be surplus to the respondents' requirements. It may be that the respondents would like to carry out a restructuring which, of course, in general terms it is perfectly entitled to do. But that is a different thing from saying that if the applicants go back to work now there is no work for them to do. The applicants are all very experienced nursing sisters and there is no suggestion that they are other than competent in their work and that their work would not be valuable and useful. 7 I propose to grant the injunction. I will hear from counsel as to the appropriate directions which I must emphasise of course are subject to directions by North J and indeed one of the directions I will make is that the matter be listed for mention as soon as possible before his Honour. 8 There will be orders that: 1. Pending the hearing and determination of the matter or further order, the respondents reinstate the second, third, fourth, fifth and sixth applicants, namely Elizabeth Telling, Margaret Forehan, Susan Morgan, Annette Pethybridge and Zelma Crawford, to their employment, being employment undertaken by them immediately prior to 27 January 20000 in respect of the second to fifth applicants and prior to 7 December 1999 in respect of the sixth applicant. 2. The parties arrange the listing of this matter for mention before North J as soon as possible. 3. I will reserve the costs of the application.