Automotive Food Metals Engineering Printing & Kindred Industries Union v ACI Mould Manufacturing

Introduction 1 Due to time constraints, these reasons, of necessity, have been prepared in haste but nonetheless with care, and they may be subject to revision in their final form. On 21 December 1999 the applicant filed an application supported by a statement of claim in which it sought the following relief: (a) the imposition of a penalty on the respondent under s 298U(a) of the Workplace Relations Act 1996 (Cth) ("the Act") for contravention of s 298K of the Act by injuring or threatening to injure some of its employees in their employment and/or altering or threatening to alter the position of the employees to their prejudice in the manner described in the statement of claim, for a prohibited reason under s 298L of the Act or for reasons that included such a prohibited reason, namely that the employees are members of the applicant; (b) orders under s 298U(c) of the Act that the respondent pay compensation to the employees in respect of the effect upon the employees of the said contravention of s 298K; (c) injunctions under s 298U(e) of the Act restraining the respondent from continuing to contravene s 298K; (d) orders under s 298U(e) and (f) of the Act that the respondent remedy the effects of the said contravention of s 298K of the Act by: (i) compensating the employees for the effects upon the employees of the contravention of s 298K; (ii) withdrawing any orders not to attend work at the Box Hill plant of the respondent; (iii) paying to the employees their annual leave entitlements for Christmas close‑down period; (e) the imposition of a penalty on the respondent pursuant to s 170NF of the Act for a contravention of s 170NC of the Act in that the respondent did in December 1999 take or threaten to take action with intent to coerce the employees to agree to making an agreement under Div 2 or 3 of Pt VIB of the Act in the manner described in the statement of claim; (f) an order pursuant to s 170NG of the Act that the respondent be enjoined from contravening s 170NC of the Act by: (i) ordering or threatening to order the employees not to attend for work at the Box Hill plant in December 1999; (ii) refusing to pay the employees their annual leave entitlements for the Christmas close‑down period; (g) the imposition of penalties under s 178 of the Act on the respondent for breaches of the ACI Mould Manufacturing Certified Agreement; (i) the imposition of a penalty on the respondent pursuant to s 170NF of the Act for a contravention of s 170NU of the Act in that the respondent did in December 1999 dismiss, injure or alter the position of the employees to their detriment or threaten to do so wholly or partly because the employees were proposing to engage, were engaging or had engaged in protected action; (i) an order pursuant to s 170NG of the Act that the respondent be enjoined from contravening s 170NU of the Act by: (i) ordering or threatening to order the employees not attend for work at the Box Hill plant in December 1999; (ii) refusing to pay the employees their annual leave entitlements for the Christmas close‑down period. 2 By way of interlocutory relief, the applicant seeks an order that the respondent cease and refrain from: (a) continuing to stand down the employees from their employment and from refusing to pay the employees their holiday pay for their annual leave (b) contravening s 170NC, s 170MU and s 298K of the Act by continuing to stand the employees down from their employment and refusing to pay them their holiday pay. Background 3 The respondent employs eighty‑four non‑management staff at its Box Hill plant at 38 Lexton Road, Box Hill. Eighty‑three of these employees are members of the applicant union and one is not a member. The ACI Mould Manufacturing Certified Agreement 1997 is an enterprise bargaining agreement which was certified by the Australian Industrial Relations Commission under s 170LT of the Act and came into operation on 30 June 1997. In February 1999 the applicant served a log of claims on the respondent and thereafter there were discussions about the log of claims and a new certified agreement. Other industrial matters occurred, the details of which are not immediately relevant for present purposes. They involved stand‑downs which were withdrawn and suspensions of applications for annual leave which were withdrawn. Discussions in relation to the log of claims and the new certified agreement continued into September 1999. 4 On 2 August 1999 the respondent initiated a bargaining period in accordance with s 170MI of the Act in relation to an intention to try and make an agreement with the applicant and to have it certified under the Act. The notice set out the particulars required by s 170MJ of the Act, specifying the employees subject to the proposed agreement as being the members of the applicant and the business to be covered by the agreement as being the Box Hill plant. On 10 August 1999 the respondent suspended all future applications for annual leave but withdrew that suspension on 13 August 1999. 5 On 30 September 1999 the respondent notified the employees at its plant by memorandum that the Christmas close‑down period was due to commence and that applications for leave had to be completed by 15 October 1999. The Christmas close-down period referred to in the memorandum covered the period from 7.00 am on Wednesday, 22 December 1999 to 7.00 pm on 23 January 2000. In the memorandum the respondent noted that due to production requirements over the Christmas and New Year periods it would require adequate manning levels, that it was very important that all employees prior to booking holidays and accommodation ensure that their leave had first been approved, that booking holidays and accommodation did not guarantee that annual leave would be approved, that adequate coverage over Christmas and New Year must be maintained and the respondent reserved the right to maintain the necessary manning. Plant maintenance would commence from 7.00 am on 23 December 1999 until 8 January 2000, excluding Christmas Day, Boxing Day and New Year's Day. 6 Subsequent to the issuing of the memorandum, four applications for annual leave were approved by the respondent, including an application by Mr Keith Lewis, who was granted two weeks' leave on compassionate grounds. On 21 October 1999 the applicant forwarded to the respondent notification of industrial action between 26 and 28 October 1999, which industrial action occurred. On 8 November 1999 the applicant forwarded to the respondent a further notification of industrial action which proposed that from 31 October 1999 an indefinite ban on working overtime would be imposed on every third and fourth week of each month and it also proposed other bans and limitations. 7 On 23 November 1999 the respondent advised the employees that due to the bans and limitations imposed by the applicant on 8 November 1999 and the uncertainty that this had caused in relation to meeting customer order commitments, it had no alternative but to reconsider the annual close-down at Christmas. The memorandum also advised that all employees who had applied for leave over the Christmas period would be advised as soon as possible if their leave had been approved. On 26 November 1999 a meeting of employees refused to accept the respondent's final position with respect to the new agreement and on 13 and 14 December 1999 there were further discussions in which the respondent refused to negotiate its final offer which had been put on 24 November. 8 On 16 December 1999 the respondent notified the employees who were members of the applicant that they were to be stood down commencing on 17 December and that the stand-down would continue until further notice and that they would not be paid for the period during which they were stood down. The respondent referred to clause 6C of the Metal Industry Award 1984 and clause 4.6 of the Metal Engineering and Associated Industries Award 1998. On 20 December 1999 the respondent sent a letter to the applicant notifying that it intended to lock out the employees. The letter was in the following terms: " RE: Notice of Intention to Lock Out Further to the bargaining period in respect of ACI Mould Manufacturing, I hereby give your Union notice of intention to take lock out action. Separate notices will be given to each employee on the basis of the shift they are on in accordance with Section 170MO(3)(b) of the Workplace Relations Act 1996. Pursuant to Section 170M(5) of the Act we notify you that the intended action is lock out action. The lock out will apply to the employees listed in Schedule 1 of the notice. The lock out action will commence on: · Day shift 1 21/12/99 · Night shift 1 21/12/99 · Day shift 2 23/12/99 · Night shift 2 22/12/99 Whilst the employees are locked out they will not be paid. As a result of industrial action no annual leave can be approved." 9 According to the respondent, the lockout had the purpose of responding to industrial action by the employees whose employment would be the subject of a new certified agreement covering the Box Hill plant. The respondent's plant manager, Mr Brian Bourke, said that the lockout did not have any other purpose and that it ended the stand‑down of employees. An employee of the respondent, Mr Alec Sipovac, was notified on 16 December that he was stood down with effect from 17 December but despite that he attended the plant on 17 and 18 December in accordance with his rostered hours. On one of those days he observed that Mr Trevor Ibbetson, who was not a member of the applicant, was working and Mr Sipovac asked him whether he had received his annual leave and he said that he had. 10 Mr Bourke said that Mr Ibbetson did not participate in any industrial action which was undertaken by the applicant and that this was the sole reason why the respondent decided, consistently with s 170ML(3) of the Act, to exclude Mr Ibbetson from the effect of the lockout. 11 The industrial action undertaken by the applicant, notice of which was provided on 8 November 1999, has not at any time been withdrawn. According to the applicant there is a significant amount of work and outstanding orders at the Box Hill plant, which orders are due to be completed in December 1999 and January, February and March 2000. The applicant further contends that the employees who were locked out will suffer significant financial hardship because they have been unable to work since 16 December 1999 and will not receive their annual leave payments. The applicant contends that the employees require their wages from 16 December and their annual leave payments to meet ongoing financial commitments including mortgage payments, normal daily expenses and Christmas presents for their children. In particular, one employee has outstanding payments on his home mortgage that he is not able to meet because he has not worked since 16 December 1999 and will not receive his annual payment. 12 Mr Bourke denied that the circumstances and sequence of events referred to in the statement of claim, which I have generally summarised earlier, have been for the reasons that the employees are members of the applicant. He said that the employees who were suspended without pay on 27 July 1999 had refused to work in accordance with a reasonable directive and that this was the sole reason for their suspension. He also said that the stand‑downs of employees which occurred in August and 17 to 20 December 1999 were solely for the reasons contained in the notices given to the employees on 11 August and 16 December 1999. Submissions of the parties 13 The respondent submitted that the interlocutory relief sought by the applicant was underpinned by erroneous assumptions that: · the employees are presently stood down from their employment, and · that the employees have an extant entitlement to holiday pay for annual leave. The respondent submitted that the employees were stood down by the notice issued on 16 December 1999 which was given in accordance with clause 6C of the Metal Industry Award 1984 and it was said that that stand‑down came to an end on 20 December 1999 when the notice of intention to lock out was given which lockout notice is valid. It was said that on 2 August 1999 the respondent initiated a bargaining period in accordance with s 170MI of the Act and during that period it was entitled for the purposes of responding to industrial action to lock out all or any of its employees whose employment was to be subject to the proposed agreement. 14 The respondent said that any such lockout is protected industrial action in accordance with s 170ML(3)(b) of the Act and during the period of the lockout the respondent is entitled to withhold payment from employees in accordance with s 170ML(5). It was then submitted that an interlocutory order in the terms sought restraining the respondent from continuing to stand‑down the employees from their employment would be of no utility and would have no impact upon the lockout. 15 The respondent submitted the employees did not have an entitlement to annual leave during the Christmas close‑down period under clause 25(m) of the Metal Industry Award or as a result of custom and practice. It was said that clause 25(m) of the award only applies in circumstances: "where an employer closes down his plant or section or sections thereof for the purposes of allowing annual leave to all or the bulk of the employees in the plant or section or sections concerned". It was said that the respondent has not closed its plant and the employees are presently locked out, that there is no extant notice of a shutdown and that save for four employees no other employees have had their annual leave approved. 16 The respondent said that there was no evidence which would support a finding of the existence of an implied term in the contracts of employment of the employees to the effect that the employees are entitled to be paid annual leave during the Christmas and New Year period even though such leave has not been approved by the employer and even though the employer has not shut down its business. 17 The respondent then submitted that there is no serious question to be tried as to the inability of employees to attend for work as a direct consequence of the respondent engaging in protected industrial action, namely the lockout, and that no cause of action lies under s 298K, s 170NC or s 170MU in respect of a lockout. Finally, it was submitted that the balance of convenience is against the grant of an interlocutory injunction in the terms sought as it in effect involves a mandatory injunction in the nature of specific performance of a contract of employment. 18 The applicants have submitted that there has been a breach of s 298K, s 170NC and s 170MU of the Act which entitles them to the relief which is sought. I turn to the relief which is sought and a consideration of the submissions which have been made. Reasoning 19 The employees' entitlement to annual leave arises under clause 25 of the Metal Industry Award 1984 and clause 25(m) provides for annual leave payments where there is an annual close‑down of the plant. Clause 25(m) provides: "Where an employer closes down his plant, or a section or sections thereof, for the purposes of allowing annual leave to all or the bulk of the employees in the plant, or section or sections concerned, the following provisions shall apply: (1) He may, by giving not less than four weeks notice of his intention so to do, stand off for the duration of the close down all employees in the plant, or section or sections concerned and allow to those who are not then qualified for a full entitlement to annual leave for 12 months continuous service, pursuant to subclause (a) hereof, paid leave on a proportionate basis ..." The clause then continues in respect of matters not relevant for present purposes. It does not appear that there has been or will be an annual shutdown of the plant for the purposes of allowing annual leave to all or the bulk of the employees in the plant. Although an annual shutdown was contemplated by the memorandum of 30 September 1999, the respondent reserved the right to maintain the necessary manning over the Christmas and New Year period and said that booking holidays did not guarantee that annual leave would be approved. Further, the memorandum of 23 November 1999 stated that the respondent was reconsidering the annual close‑down at Christmas. It does not appear therefore that an entitlement to be paid holiday pay for annual leave has arisen. The respondent has not closed down its plant. 20 In the draft order which was submitted to me by Mr Green QC who appeared with Mr Dowling for the applicant, a form of order was proposed that the respondent pay by no later than 31 December 1999 each of the eighty‑three employees referred to in the affidavit their respective annual leave entitlements in respect of the Christmas holiday period, 18 December 1999 to 19 January 2000. In the course of submissions Mr Green quite candidly put to me that that form of relief was ambitious and I do him no disrespect when I say that, in my opinion, that was an appropriate characterisation of the relief in the sense that, notwithstanding the feelings of the employees, the fact situation which underpins the entitlement to have the annual leave entitlements paid has not yet occurred for the reasons to which I have referred. 21 Although eighty‑three employees are presently locked out the plant has not been shut down or closed. There is not in existence, nor is there operative, a notice of shutdown nor any notice of stand‑down. The stand‑down which occurred on 16 December 1999 was to continue until further notice and that notice was given when the notification of the lockout was given and on that date the stand‑down came to an end. 22 The applicant contends that the lockout is not valid or effective and advances two reasons for that submission. Firstly, it is said that no duration for the period of the lockout or termination date for the lockout is set out in the notice of the lockout. Secondly, it is submitted that the giving of the lockout notice constituted a breach of s 298K of the Act because the notice was given, in terms of s 298L(1)(a), because the employees are members of an industrial association, namely the applicant. 23 The applicant submitted that the reason why the matter comes under s 298K is because the effect of the lockout is either to injure the employees in their employment or to alter their position to their prejudice. The applicant submitted that there is a serious question to be tried as to whether, in undertaking the lockout, the respondent has acted not only in contravention of s 298K but also in contravention of s 170NC and s 170MU of the Act. It also contends that there is a serious question to be tried as to whether there has been a contravention of s 178(1) of the Act in that the respondent has contravened clause 6C of the Metal Industry Award 1984, incorporated into the agreement in 1997. 24 I am conscious of the fact that on an application for an interlocutory injunction the relevant test to be satisfied, and the relevant question to be asked and answered, is whether there is a serious question to be tried and whether the balance of convenience favours the grant of relief. I refer, for example to Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55 at 58‑59 and Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153‑154. Consistently with those principles and those decisions, I approach the matter as to whether there are serious questions to be tried on the issues as advanced by counsel for the applicant. 25 It was submitted by Mr Green that there is a serious question to be tried as to whether the notice is invalid because it does not specify the duration of the lockout or the date on which the lockout is to end. Mr McDonald, who appeared for the respondent, submitted that there was no requirement in the legislation to do so. Section 170MO(5) provides that the notice must state the nature of the intended action and the day when it will begin. Nothing is said about duration of the intended action or the day on which it is to terminate. It is a simple intellectual exercise of statutory interpretation to say that because the provision for duration or termination is not specified in s 170MO(5) then the Parliament did not intend there to be such a provision. I do not think the matter can be resolved so simply. 26 The matter has come on for hearing with a great degree of urgency and although I have had the benefit of cogent argument from experienced counsel I have not had the opportunity of full argument nor the opportunity to consider the overall historical and legislative background to this type of provision. The issue was touched on by the Industrial Relations Court in passing in Lennie v Hawkes (Marshall J, 4 October 1996, unreported), where at 22 Marshall J said in the context of considering a lockout notice: "It must be unambiguously clear to employees that they are prevented from performing work during a certain, ascertainable, period of time." The notice which his Honour had before him was a notice which he ultimately found to be ambiguous because it did not specify the date when the lockout was intended to commence or was in fact to commence. His Honour said at 30: "… nowhere in the notice does it state when the recipients of the notice will be locked out." Later his Honour said: "The notice is ambiguous on the issue as to when lockout action will occur." It was for that reason that his Honour found the lockout notice was invalid. Mr McDonald submitted that read, in context, his Honour's observation was not considering a termination date of the lockout but rather the commencing date. There is force in that argument. 27 In Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108, the majority of the Full Court, Wilcox and Cooper JJ, made the following observation in relation to s 170MO(5): "We think s 170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shut down. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shut down during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lock out some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees' notice of bans by giving notice of a lockout of some or all employees. It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, 'an indefinite strike of all employees,' 'lockout of all employees employed in the AB fabrication plant,' 'ban on overtime,' 'ban on the use of MN equipment,' 'rolling stoppages throughout the mine,' 'ban on the servicing of delivery vehicles.' If we are correct in this approach, it follows that a notice that refers only to 'bans and rolling stoppages' without any indication of the nature of the bans or the location of the rolling stoppages' does not adequately disclose 'the nature of the intended action.'" Their Honours were not faced with the issue before me and, apart from the judgment of Marshall J to which I have referred, I have been unable in the short time available to me to find any judicial learning on this particular subject matter. 28 Although it might be said that their Honours' reasoning in Davids Distribution Pty Ltd v National Union of Workers (supra) is consistent with the view that a lockout notice does not have to specify the duration or termination date of the lockout, I am unable to say that there is not a serious question to be tried on that issue. In the time available to me and having regard to the brevity of consideration available to me, the matter having come on for hearing the day before Christmas Day, I am unable to say with confidence and without doubt that there is not a serious question to be tried on the issue whether the lockout notice is not valid or effective because it does not state the duration of the lockout or the day it will end. Put more correctly, in accordance with the test I have to apply, but not without hesitation, I am satisfied that there is a serious question to be tried on this issue. 29 Having regard to the arguments that have been put before me and in case this matter goes elsewhere I should deal with the other arguments which were addressed to me. The next question to consider is whether there is a contravention of s 298K of the Act. The relevant sections of the Act are as follows: "298K(1) 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; (d) refuse to employ another person; (e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person … 298L(1) Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned: (a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; … 298V If: (a) in an application under this Division relating to 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 as, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise." 30 It appears that only those non-management employees who are union members were stood down and locked out and that only the union members were denied their annual leave during what is claimed to be the Christmas close‑down period. It was submitted that the employees were injured or their position altered to their detriment when they were denied the opportunity to attend work and receive wages on and from 16 December 1999 and when they were denied their annual leave payments for the Christmas close‑down period. 31 Mr Green submitted that there was no evidence that the bans and limitations which had been imposed were biting. However, according to the evidence the bans and limitations exist and the evidence establishes that they are continuing. It is not for me to evaluate the degree of any disruption caused by the bans, but rather to be satisfied that the lockout is a response to industrial action. The evidence discloses that it was such a response. The respondent submitted that there is no cause of action which lies under s 298K by virtue of the provisions of s 170MT(2) of the Act. The applicant submitted that that section does not apply to s 298K of the Act and that unlike s 170NC and s 170MU of the Act, s 298K does not have in-built immunity provisions. 32 Section 170MT(2) provides: "Subject to subsection (3), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless industrial action has involved or is likely to involve: (a) personal injury; or (b) unlawful or reckless destruction of, or damage to, property; or (c) the unlawful taking, keeping or use of property." Subsection (3) of s 170MT is not relevant for present purposes. The bargaining period initiated by the respondent's notice on 2 August 1999 has not been terminated and is current and was current on the date that the notice of the lockout was given and the lockout commenced. I therefore consider that s 170MU(2) is an answer to the applicant's claim. 33 If I am wrong in this respect I am not satisfied that there is a serious question to be tried as to whether the lockout has occurred for a prohibited reason, namely because the eighty‑three non‑management employees are members of the applicant. The lockout notice was given in accordance with s 170ML(3)(b) that is, it was a response to industrial action by employees. That industrial action had been taken by those employees who are members of the union so the lockout was a response to those employees who happened to be members of the union. That was coincidental in the sense that it was specifically directed to those employees who were implementing the industrial action. They were undoubtedly members of the applicant but the lockout did not occur because, in the terms of s 298L, they are members of the union. The lockout occurred because they had implemented the industrial action. For the lockout to be valid it had to be directed to those persons. 34 I turn to s 170NC of the Act. Section 170NC(1) provides: "A person must not: (a) take or threaten to take any industrial action or other action; or (b) refrain or threaten to refrain from taking any action; with intent to coerce another person to agree, or not to agree, to: (c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or (d) approving any of the things mention in paragraph (c)." The applicant submitted that the suspension, stand‑downs and lockouts have been actions taken by the respondent with the intent of coercing the employees to make the new certified agreement and it relies on the course of conduct in which the respondent has engaged from February 1999 through to the lockout. The applicant submitted that what it called the qualified denial by Mr Bourke in par 11 of his affidavit should be read against that course of conduct. In par 11 Mr Bourke said: "I have read paragraphs 27 to 55 of the Statement of Claim which has been filed in this proceeding. I expressly deny that any of the conduct of ACI referred to in paragraphs 27 to 55 has been for the reason, or reasons including the reason, that employees are members of the AMWU. The employees who were suspended without pay on 27 July 1999 had refused to work in accordance with a reasonable directive. This was the sole reason for their suspension. The stand downs of employees on 11 and 12 August and 17 to 20 December were solely for the reasons contained in the written notices which were issued to employees on or about 11 August and 16 December 1999." I do not regard what Mr Bourke says in par 11 as a qualified denial. The respondent relied upon s 170NC(2) of the Act which provides: "Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8)." The lockout is protected action by virtue of the provisions of s 170ML(3) of the Act which provides: "Subject to subsection (6), during the bargaining period, the employer is entitled, for the purpose of: (a) supporting or advancing claims made by the employer in respect of the proposed agreement; or (b) responding to industrial action by any of the employees whose employment will be subject to the agreement; to lock out from their employment all or any of the employees whose employment will be subject to the agreement and, if the employer does so, the lockout is protected action." I am satisfied that the lockout implemented by the respondent falls within the provisions of s 170ML(3) of the Act. 35 I turn to s 170MU of the Act which provides: (1) An employer must not: (a) dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice; or (b) threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice; wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action. (2) Subsection (1) of this section does not apply to any of the following actions taken by the employer: (a) standing-down the employee; (b) refusing to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed; (c) action of the employer that is itself protected. (3) In proceedings under section 170NF for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected action." As the applicant pointed out, s 170MU(3) creates a reverse onus and the taking of protected industrial action may be wholly or partly the reason for the injury or altered position of the employee in his or her employment. Nevertheless, subpara (c) of s 170MU(2) provides that the proscription in s 170MU(1) does not apply where the action taken by the employer, which is the subject of complaint, is itself protected. As I have noted earlier, the lockout is protected action. 36 It is submitted by the applicant that the breach of s 170MU occurred prior to the lockout, that is to say when the stand‑down occurred on 16 December 1999. However, the stand‑down came to an end when the lockout became operative. 37 Relief was sought in relation to s 178(1) of the Act, which provides: Subject to section 182, where an organisation or person bound by an award, on order of the Commission or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or, except in the case of a breach of a bans clause, by a court of competent jurisdiction." The applicant submitted that at the time the stand‑downs occurred there was sufficient work upon which the employees could usefully have been employed. Assuming that that submission is correct, s 178 provides for the imposition of a penalty and does not entitle the applicant to the urgent interlocutory relief it seeks today. 38 For the reasons which I have given I am not satisfied that there is a serious question to be tried on the issue of whether the respondent should cease continuing to stand‑down the employees from their employment having regard to the lockout which has occurred. I am also not satisfied that there is a serious question to be tried that the respondent is obliged to cease from refusing to pay the employees their holiday pay for their annual leave. 39 However, as I have explained, I am satisfied there is a serious question to be tried on the issue of the validity of the lockout notice. I am satisfied that the balance of convenience is in favour of the grant of interlocutory relief sought by the applicant in this respect. It is not being put that a restraint on acting on the lockout notice will cause the respondent significant harm. In particular there is no evidence that it has shut down the plant. Although the respondent submitted that interlocutory relief in the terms sought would be in the nature of a mandatory interlocutory injunction which the court, according to accepted principles, should be reluctant to make: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 503, I do not consider that an injunction restraining the respondent from giving effect to the lockout notice dated 20 December 1999 falls into the category of the type of injunction the courts should be reluctant to grant. 40 A draft of proposed orders was submitted to me in the course of argument by Mr Green. As is apparent from the reasons to which I've already referred, I do not consider that relief should run in terms of pars 1(a), 2 and 3 of that draft. It seems to me, subject to what counsel may say consistently with my reasons, that upon the usual undertaking as to damages being given the order of the court should be that until the hearing and determination of the proceeding or further order the respondent be restrained, whether by itself, its servants or agents or otherwise howsoever, from giving effect to the notice of intention to lock out its employees dated 20 December 1999, a copy of which notice is exhibit BON12 to the affidavit of Bernadette O'Neill sworn 21 December 1999. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.