Communications, Electrical, Electronic, Energy, Information, Postal and Allied Services Union of Australia v Dee Vee Pty Ltd

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

1. That until the hearing and determination of the application or further order, the respondent reinstate the second applicant to the position that he held as a parcel delivery driver immediately before 24 August 2012 and to the duties attaching to that position, on the same terms and conditions as those that applied to the position and to those duties prior to the termination of the contract between the second applicant and the respondent; and
2. The respondent, whether by itself, its servants or agents be restrained from dismissing or terminating the second applicant or preventing, however described, the second applicant from performing the aforementioned duties.
3. There be liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 607 of 2012

BETWEEN: COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

JUDGE: TRACEY J DATE: 3 SEPTEMBER 2012 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Mr William Damen commenced work for the respondent ("Dee Vee") in March 2012. Dee Vee had a contract to deliver parcels for Australia Post. It engaged Mr Damen and other drivers to deliver parcels in the Maribyrnong and surrounding areas on each week day. Mr Damen delivered the parcels in a van which he owned. He was responsible for the payment for fuel and other running costs of the van. Mr Damen paid for the insurance of his van. Dee Vee paid for cargo and public liability insurance. There was a sign in the window of the van which identified the driver as an Australia Post courier. Mr Damen was remunerated for his services by payment (made monthly) of $1.10 for every parcel which he delivered. 2 Ms Debra Baguley and Mr Jerry Katz are officers of Dee Vee. 3 In July 2012 Mr Katz spoke to Mr Damen and some other drivers engaged by Dee Vee. He told them that there was "a problem" with their superannuation. He said that superannuation would now have to be deducted from the payments made to the drivers for their services. Mr Katz subsequently approached Mr Damen and asked him to sign a contract. Mr Damen had not previously been asked to sign a contract relating to the provision of his services to Dee Vee. Mr Katz told him that the contract was "an Australia Post requirement." One of the terms of the contract would have permitted Mr Damen to sub-contract the provision of delivery services to another person. Mr Katz also suggested to Mr Damen that he consider incorporation and that Dee Vee would be prepared to meet the costs of establishing any company Mr Damen set up. 4 Despite subsequent urging by Mr Katz to sign the contract, Mr Damen declined. He considered that he was an employee of Dee Vee and that such a contract contained terms which were not consistent with that status. 5 In mid-July 2012, Mr Damen and some other drivers had a meeting with officials of the Victorian Branch of the applicant union ("the Union"). They were given certain advice about their entitlements under a relevant Award ("the Award") on the assumption that they were employees of Dee Vee. That advice related, in part, to the drivers' entitlement to minimum wage rates and to Dee Vee making superannuation contributions on their behalf. 6 On 31 July 2012, Mr Damen became a member of the Union. 7 In early August 2012, the Union took these issues up with Mr Katz and it subsequently notified a dispute to Fair Work Australia. A conference took place at Fair Work Australia on 15 August 2012 and a further conference occurred on 22 August 2012. 8 On the morning of 24 August 2012, Mr Damen attended at an Australia Post delivery centre to load parcels for delivery during that day. Early in the morning an accident occurred in the loading bay of the centre. It appeared that Mr Damen's vehicle had struck Ms Baguley whilst it was reversing. Ms Baguley subsequently required medical attention. 9 At about 5:00 pm on that day Mr Katz, who was accompanied by another man, attended at Mr Damen's residence. Mr Katz handed Mr Damen a letter. The letter was headed "Termination of Engagement". It read: "Effective immediately, your engagement with Dee Vee P/L is terminated. All equipment issued to you i.e. scanner, scanner charger, Australia Post ID, security entry swipe card, is to be returned to Dee Vee immediately." The letter was signed by Ms Baguley. 10 As he handed the letter to Mr Damen, Mr Katz (according to Mr Damen) said words to the following effect: "It is a letter of termination, we have had enough - we gave you an opportunity to reconsider your position. The fact you brought the union in … we have had enough. Have you got any idea how much you've cost us? Now we need to get the charger, scanner, swipe card, because we are paying rent on them." Mr Damen took the letter and said that he wished to make some phone calls. He later returned to the door and told Mr Katz that he had legal advice and that he did not propose to return the scanner. The man accompanying Mr Katz then said words to the effect that "My mum's been at the doctor most of the afternoon … You did not even bother to call her to see how she was …". Mr Katz and the other man then left with the other man saying: "You had better watch your back - you will get yours!". 11 Mr Damen's account of these exchanges was corroborated by another resident of the house, Mr George Young, to the extent that he attributed to Mr Katz the words "because you went to the union". 12 Mr Katz's version of the conversation differed but not substantially. He said that he had attended at Mr Damen's home address in company with Ms Baguley's son, Mr Zachary Protopas. He knocked at the door. Mr Damen opened the door. Mr Katz handed him the letter in an envelope and said "You are terminated". Mr Damen asked why and he [Mr Katz] replied "We have had enough, after this morning's incident with running into Deb". Mr Damen then said "This has got to do with the Union" and Mr Katz responded "Well, you went to the Union" and Mr Damen then said "It was not me who went to the Union". Mr Katz replied "So what" or words to that effect. Mr Katz told Mr Damen that he needed to return the scanner and its charger and various other items. Mr Damen then closed the door and went inside for several minutes and subsequently told Mr Katz that he was checking things out and would be back shortly. After a delay of a further 10 minutes or so, Mr Protopas knocked on the door again and Mr Damen returned and advised that he had checked with the Union's solicitor and that he was not proposing to return the items of equipment which had been demanded. 13 Mr Katz asked, "Why not?" and Mr Damen replied "because I have not been paid". It appears that the monthly payment had been due that day but had not been made. Mr Katz replied "Well, you will be paid as normal - it is just that it has been delayed because of what has happened today." 14 On 30 August 2012, the Union and Mr Damen commenced a proceeding against Dee Vee. They alleged that the termination of Mr Damen's services constituted adverse action in contravention of s 340(1)(a)(i) and/or (ii) and/or s 346(a) and/or (b) of the Fair Work Act 2009 (Cth) ("the Act"). They sought interim relief pending the hearing and determination of the application. That relief was sought under s 545 of the Act. They sought orders that Dee Vee reinstate Mr Damen and restraining Dee Vee thereafter from dismissing or terminating him or preventing him from performing his duties. 15 The application for interim relief was opposed by Dee Vee. 16 The applicants alleged that Dee Vee had terminated Mr Damen's services because he had exercised his right to assert an entitlement to superannuation payments and higher remuneration, because he was a member of the Union and/or that he had engaged in or proposed to engage in industrial activity in pursuit of his claims to be entitled to benefits under the Award. 17 In dealing with an application for interim or interlocutory relief the governing principles are those laid down by the High Court in Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-3. The Court is required to pursue two main enquiries: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second enquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." 18 In Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 82-84, Gummow and Hayne JJ explained that the requirement of a "prima facie case", "did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial." The Court is also required to have regard to "the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought." 19 In my view, having regard to the evidence presently before the Court, there is a serious question to be tried as to whether Mr Damen's services were terminated for a prohibited reason. 20 The termination letter which was given to Mr Damen contains no reason for Dee Vee's decision. Mr Damen (supported by Mr Young) has deposed that Mr Katz said, when handing the letter over, that Dee Vee had been motivated, in part at least, by the fact that Mr Damen had "brought in the union" and had thereby cost Dee Vee a good deal of money. Furthermore, there is evidence from which it might be inferred that Dee Vee was incommoded by the suggestions, made by the Union on Mr Damen's behalf, that he was an employee, that he was entitled to the benefits of the Award, that Dee Vee was required to make superannuation contributions on his behalf and that Dee Vee had underpaid him for his services. 21 Dee Vee has put on evidence which suggests that the true reason for its decision was related to the incident on the morning of 24 August 2012 in which the vehicle driven by Mr Damen struck Ms Baguley. Whether that be the real reason will be an issue at trial. It is, however, to be noted that Mr Damen was never advised that this was the reason for Dee Vee terminating his engagement and he was never confronted with an allegation that he had driven negligently or given the opportunity of providing his account of the relevant events. The statement by Mr Katz's companion (who was Ms Baguley's son Mr Zachary Protopas) that Mr Damen hadn't bothered to call to see how Ms Baguley was feeling hardly constitutes an allegation of negligence warranting immediate termination of the contract. It may also be significant that, on Mr Katz's account of the conversation, he admits to having said: "We have had enough, after this morning's incident with running into Deb." This statement is open to the construction that the incident on the morning of 24 August 2012 was the straw that broke the camel's back rather than the sole reason for the termination as Ms Baguley claims. 22 The applicants may succeed at trial even if one of the reasons which motivated Dee Vee to terminate Mr Damen's services was that he had been driving negligently (or deliberately) when his van struck Ms Baguley. This is because, by s 360 of the Act, a person is deemed to take action for a particular reason "if the reasons for the action include that reason." 23 The balance of convenience favours the granting of an injunction pending trial. Mr Damen is 61 years old. He has certain physical injuries which limit his capacity to lift and move, and restrict his capacity to carry heavy items and to travel for protracted periods. He has limited means and depends on his work as a courier for his livelihood. Prospects of obtaining alternative employment, although confidently asserted by Dee Vee, are no more than speculative. 24 Dee Vee has not suggested any serious inconvenience would be experienced by it should it be required, pending trial, to continue to employ Mr Damen. Dee Vee says that he had only been employed for four months and, therefore, does not have benefits that would otherwise accrue to a long-standing employee or contractor. It asserts that he is an unacceptable health and safety risk, and that Ms Baguley believes that he deliberately drove the van so as to strike her. She emphasises that she believes this with sufficient conviction to justify her reporting the matter to the police. No details have been given about the terms of any statement she made to the police, or any action taken in response by the police. 25 Ms Baguley is, according to a medical certificate which had been tendered on her behalf, presently unable to work. Even under the regime which applied during the four months prior to the incident on 24 August 2012, the evidence suggests that Mr Damen had limited contact with Ms Baguley. She was present on occasions at the distribution centre, but she did not accompany him on his rounds, and she was not responsible for directing his activities. That responsibility fell on Mr Katz. 26 Given that Ms Baguley is presently unable to work, there would seem to be no immediate prospect of them coming into contact if Mr Damen returns to performing his duties. 27 There has been a long standing reluctance on the part of common law courts to order specific performance of contracts of service or contracts for services. That reluctance has eased with the introduction of statutory provisions such as s 545 of the Act: see Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 at 28; Quinn v Overland (2010) 199 IR 40 at 59-61. 28 It seems to me that the balance of convenience favours the granting of an injunction pending trial. 29 The question of whether damages would be an adequate remedy was also raised by Dee Vee. I accept that, if there was a prospect of a speedy trial, this submission would have some force. I am, however, unable to predict just how quickly this matter can be brought on for trial, although the Court will do its best to facilitate an early hearing. 30 The consequence of the inevitable delay will be that a 61 year old man with limited capacity may well be deprived of the opportunity to continue regular rounds, doing what he is able to do in his immediate area and thereby be deprived not only of his income, but of his attractiveness to potential alternative employers, such as they may be. 31 In those circumstances I do not regard the possibility that, some months hence, an order that would require the payment of damages to him would retrospectively remedy the situation in which he presently finds himself. It is also relevant, in this context, to note that the Union has indicated that it is prepared to give the usual undertaking as to damages to protect Dee Vee's position should the company be successful at trial. In the circumstances, I propose to make orders substantially in the terms of the minute that was tendered on the last occasion by the applicants. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.