Construction, Forestry and Maritime Employees Union v Programmed Industrial Maintenance Pty Ltd [2025] FCA 257

CPB relied upon this passage to submit that it was sufficient that the affidavits revealed the unnamed employees to be members of an identified group. However, the opinion expressed in such absolute terms by Snaden J as to what amounts to sufficient evidence of the source for s 75 of the Evidence Act does not, with respect, seem to be supported by earlier decisions of intermediate appellate courts. As was held in Ahern (approved in Vu), the sufficiency of the disclosure depends on the exigencies of each particular case and is a matter for a court's discretion. Where the source of the information is attributed to an unnamed member of an identified group, a relevant factor must be the breadth of the identified group, bearing in mind that an object of disclosure is to allow the opposing party to test the evidence and make sensible submissions as to its weight. It could not be thought, for example, that it would be sufficient to describe an unnamed source as a member of a group identified as consisting of residents of Queensland. However, it can be accepted that s 75 does not require that the person who is the source of the information be named in every case, and that a description of an unnamed person as a member of an identified group may suffice depending on the exigencies of the case.

(Emphasis in original)

1. At [49] of CPB Contractors Pty Ltd, Rangiah J added:

... A matter that underlies the requirement for the party relying on evidence that would otherwise be inadmissible hearsay to adduce evidence of its source is the need for the opposing party to be provided with procedural fairness.

1. There is no doubt that the evidence contained at [25] of Mr Hardinge's affidavit is hearsay evidence. It is also clear that no individual source has been identified.
2. As to whether it is possible to identify the source of information, the respondent submitted that it is from the group of Mr Mooney's supervisors who were present at the mid-probation review meeting as identified at [22] of Mr Hardinge's affidavit. That affidavit identifies three possible "supervisors" who might have overheard Mr Mooney make the comment. Mr Vroland's evidence in his second affidavit is that Mr Mackin did not overhear the comment, leaving a possible two supervisors who might have heard it. Therefore, the respondent submitted, as the group consisted of only two, or three, people as distinct from the seven of 212 people potentially identified as the source of the impugned evidence in CPB Contractors Pty Ltd, the disclosure is sufficient.
3. Those submissions are not accepted. The exigencies of this case are such that the respondent should have identified the source with precision. No doubt the respondent has been under time pressure to respond to the applicants' case, but the Court may only proceed on the evidence before it. The evidence of the comment is, on the respondent's case, a key basis for Mr Mooney's dismissal, and as such the applicants are entitled to be accorded procedural fairness to enable them to meet the opposing case. Accordingly, the objection is upheld.

1. In the alternative, the applicants submitted that the evidence at [25] of Mr Hardinge's affidavit should be excluded pursuant to s 135(a) of the Evidence Act. Section 135 of the Evidence Act provides:

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time.

1. In that regard the applicants relied upon Rangiah J's statement at [55] of CPB Contractors Pty Ltd that:

In any event, I would have accepted the Union Parties' alternative submission that the evidence of statements attributed to the seven employees of CPB should be excluded under s 135 of the Evidence Act.

1. I accept the applicants' submission. Had I not accepted that the impugned part of the affidavit should not be admitted under s 75 of the Evidence Act, I would have accepted the alternative submission that the probative value of the evidence sought to be relied upon was substantially outweighed by the danger that it might be unfairly prejudicial to the applicants.

1. The applicants also objected to the second sentence at [26] of Mr Hardinge's affidavit on the basis of relevancy. Section 55 of the Evidence Act sets out when evidence is relevant.

55 Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to:

(a) the credibility of a witness; or

(b) the admissibility of other evidence; or

(c) a failure to adduce evidence.

1. The applicants orally submitted that the evidence at [26] of Mr Hardinge's affidavit was "expressed in such general terms" that it could not have "any probative value". The applicants contended that Mr McLure's mere awareness of the comment was far too general. They argued that Mr McLure's expression of non-surprise when the comment was raised during the meeting was irrelevant. I accept those submissions. Accordingly, the objection is upheld.

346 Protection

A person must not take adverse action against another person because the other person:

(a) is or is not, or was or was not, an officer or member of an industrial association; or

(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

(c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

Note: This section is a civil remedy provision (see Part 4-1).

1. An officer is defined by s 12 of the FWA, which includes "a delegate or other representative of the association".
2. Adverse action is defined in the FWA in s 342, and relevantly includes in Item 1, circumstances where the employer "dismisses the employee".
3. The term "dismissed" appears in s 12 of the FWA, which refers to s 386 of the FWA. Section 386(1) of the FWA provides:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

1. A person cannot take adverse action against another person in the circumstances set out by s 340 of the FWA. Section 340 of the FWA provides:

340 Protection

(1) A person must not take adverse action against another person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

Note: This subsection is a civil remedy provision (see Part 4-1).

1. Under s 341 of the FWA, a "workplace right" is defined as:

341 Meaning of workplace right

Meaning of workplace right

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee - in relation to his or her employment.

1. Regarding a "workplace law", s 12 of the FWA states that:

(a) this Act; or

(b) the Registered Organisations Act; or

(c) the Independent Contractors Act 2006; or

(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

1. A "workplace instrument" is defined in s 12 of the FWA as:

workplace instrument means an instrument that:

(a) is made under, or recognised by, a workplace law; and

(b) concerns the relationships between:

1. employers and employees; or
2. digital labour platform operators and employee-like workers; or
3. road transport businesses and regulated road transport contractors; or
4. persons in a road transport contractual chain.

1. The relevant "workplace instrument" in this case is the PIM Agreement. The relevant clauses include:

24. OCCUPATIONAL HEALTH & SAFETY (OH&S)

24.1. The Company has a goal of a total injury free workplace. This can only be achieved with joint co-operation between management and all employees. Employees will be required to undertake internal safety inductions upon commencement of employment.

24.2. The parties to this Agreement abhor the loss of life, sickness and disability caused at work. The parties agree to the establishment of health and safety committees in each workplace and the recognition of rights and training for health and safety representatives.

...

25. FIRST AID TRAINING

25.1. All full-time employees will be provided with Basic First Aid/CPR education and training.

...

1. ELECTION OF EMPLOYEE REPRESENTATIVES AND OHS REPRESENTATIVES

41.2 Employee Representatives and OHS Representatives

41.2.1 All persons covered by this Agreement recognise the important role of Employee Representatives and OHS Representatives. The Employee Representatives and OHS Representatives have a key role in the early intervention in industrial disputes and health and safety issues under this Agreement.

41.2.3 The Employer will recognise the following rights of Employee Representatives:

a) The right to be treated fairly and to perform their role without any discrimination in their employment.

b) The right to formal recognition by the Employer that the endorsed Employee Representative will speak on behalf of Union members in the workplace.

c) The right of access to private telephone, facsimile, post, photocopying, Internet and email facilities on major projects (and elsewhere where practicable) for the purpose of carrying out their role.

d) The right to place information related to permitted matters on a notice board in a prominent location in the workplace.

e) The right to paid time to attend industrial tribunals and/or courts where they have been requested to do so by an employee engaged on the outage or project (which may include themselves) whom they represent in a particular dispute in their workplace. The right to paid time to assist and represent employees who have requested them to represent them in respect of disputes arising in their workplace.

f) The right to represent the interests of members in their workplace to the Union, Employer and industrial tribunals/courts.

g) The right to reasonable time during normal working hours to consult with employees, Union members and officials.

h) The right to reasonable time to participate in the operation of the Union during normal working hours.

1. A person may take action for multiple reasons: s 360 of the FWA.

360 Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

1. Under s 361 of the FWA, prohibited reasons for action are presumed in the absence of evidence to the contrary. Importantly, s 361(2) of the FWA notes that this presumption does not apply to applications for orders for interim injunctions. Section 361 of the FWA reads as follows:

361 Reason for action to be presumed unless proved otherwise

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2) Subsection (1) does not apply in relation to orders for an interim injunction.

1. Also relevant is the OH&S Act, s 58 of which sets out the scope of powers of health and safety representatives as follows:

58 Powers of health and safety representatives

(1) A health and safety representative for a designated work group may do any of the following -

(a) inspect any part of a workplace at which a member of the designated work group works -

(i) at any time after giving reasonable notice to the employer concerned or its representative; and

(ii) immediately in the event of an incident or any situation involving an immediate risk to the health or safety of any person;

(ab) take photographs or measurements or make sketches or recordings at any part of a workplace at which a member of the designated work group works, other than during an interview under paragraph (d) or (e);

(b) accompany an inspector during an inspection of a workplace at which a member of the designated work group works;

(c) require the establishment of a health and safety committee;

(d) if a member of the designated work group consents, be present at an interview concerning occupational health and safety between -

(i) the member and an inspector; or

(ii) the member and the employer concerned or its representative;

(e) if the health and safety representative is authorised to represent a person mentioned in section 44(1)(e) or 48(1)(e) and that person consents, be present at an interview concerning occupational health and safety between -

(i) the person and an inspector; or

(ii) the person and the employer concerned or its representative;

(f) whenever necessary, seek the assistance of any person.

(2) However, a health and safety representative may do those things only for the purpose of -

(a) representing the members of the designated work group, or persons mentioned in section 44(1)(e) or 48(1)(e) whom the representative is authorised to represent, concerning health or safety; or

(b) monitoring the measures taken by the employer or employers in compliance with this Act or the regulations; or

(c) enquiring into anything that poses, or may pose, a risk to the health or safety of members of the designated work group, or of persons mentioned in section 44(1)(e) or 48(1)(e) whom the representative is authorised to represent, at the workplace or workplaces or arising from the conduct of the undertaking of the employer or undertakings of the employers; or

(d) attempting to resolve (in accordance with section 73) with the employer concerned or its representative any issues concerning the health or safety of members of the designated work group, or of persons mentioned in section 44(1)(e) or 48(1)(e) whom the representative is authorised to represent, that arise at the workplace or workplaces or from the conduct of the undertaking of the employer.

(3) Nothing in this Act or the regulations imposes, or is to be taken to impose, a function or duty on a health and safety representative in that capacity.

1. The first applicant and second applicant have standing to sue as per item 11 of the Table in s 539 and s 540 of the FWA. The Court has the power to grant an interim injunction as per s 545(2)(a) of the FWA.

1. The parties agreed as to the principles to be applied in respect of the grant of an interlocutory injunction as set out in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46. There must be a serious question to be tried, or prima facie case, and the balance of convenience must weigh in favour of granting the injunction: O'Neill.
2. Further, the issues of whether there is a serious question to be tried, and the balance of convenience, are not to be considered in isolation from one another: Samsung Electronics Co Ltd v Apple Inc and Another (2011) 217 FCR 238; [2011] FCAFC 156 at [67].
3. At 472 of Bullock v Federated Furnishing Trades Society of Australia (No 1) [1985] FCA 19; (1985) 5 FCR 464, Woodward J, with Smithers and Sweeney JJ relevantly agreeing, stated:

... Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it.

1. The Victorian Court of Appeal held in Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65; [2006] VSCA 89 at [35]:

... That is, whether the relief sought is prohibitory or mandatory, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been "wrong", in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.

1. This approach applies to mandatory and prohibitory injunctions equally: Bradto Pty Ltd at [35].

1. The applicants submitted that the respondent took adverse action, within the meaning of s 342 of the FWA against Mr Mooney through his dismissal, and that such adverse action was taken for prohibited reasons, namely the safety complaints made by Mr Mooney.
2. More specifically, the applicants submitted that:
   • The respondent contravened s 340(1)(a)(i) of the FWA by dismissing Mr Mooney "for the reason, or for reasons that include the reason, that he had a workplace right" being a role or responsibility under the OH&S Act as a HSR and under cl 41.2.3(b) of the PIM Agreement respectively.
   • Mr Mooney's role as a CFMEU delegate "is a role or responsibility under a workplace instrument".
   • Mr Mooney made the safety complaints through both an "exercise of his role or responsibility as an HSR (under a workplace law), and/or as an exercise of his role or responsibility under clause 41.2.3(b) or (f) of the PIM Agreement (under a workplace instrument) within the meaning of s 341(1)(a)" and "in relation to Mr Mooney's employment within the meaning of s 341(1)(c)".
   • The respondent contravened s 340(1)(a)(ii) of the FWA by dismissing Mr Mooney "for the reason, or for reasons that include the reason" that in making the safety complaints he had:

...

1. exercised a role or responsibility under a workplace law; and/or in the alternative
2. exercised a role or responsibility under a workplace instrument; and/or in the alternative
3. exercised a workplace right to make a complaint or inquiry about his employment.

• Mr Mooney was "at all material times" a CFMEU member and, by way of his status as a CFMEU delegate, an officer as defined in the FWA. Under s 346(a) of the FWA, the word "officer" may comprise "the activities carried out as an incident to the holding of that position". The making of the complaints by Mr Mooney was "an incident of his position as a delegate of the CFMEU" too.
• The respondent contravened s 346(a) of the FWA by dismissing Mr Mooney "for the reason, or for reasons that include the reason, that he was an officer or member of the CFMEU who made work safety complaints or raised work safety issues".
• Mr Mooney had previously exercised workplace rights in relation to making safety complaints within his employment, which commenced shortly after PIM undertook a contract with AGL.
• There was evidence that AGL was resistant to Mr Mooney's complaints.
• The respondent only took action to dismiss Mr Mooney after his return from annual leave.
• On that basis, the respondent dismissed Mr Mooney so that they could:

...

1. prevent Mr Mooney from exercising a role or responsibility under a workplace law again; and/or in the alternative
2. prevent Mr Mooney from exercising a role or responsibility under a workplace instrument again; and/or in the alternative
3. prevent Mr Mooney from exercising a workplace right to make further complaints or inquiries about his employment.

1. Thus, the respondent contravened ss 340(1)(a)(i), 340(1)(a)(ii), 340(1)(b), and 346(a) of the FWA by dismissing Mr Mooney.
2. As has already been set out, there is no dispute between the parties that Mr Mooney was an officer of the CFMEU at the relevant time by means of his role as a delegate and in his capacity as HSR, that he was dismissed, and that consequently adverse action occurred.
3. The applicants correctly submitted that s 58(1) of the OH&S Act gives rise to workplace rights, as "it confers a role on those persons elected as a health and safety representative".
4. To "prevent" a workplace right, under s 340(1)(b) of the FWA, was considered in Qantas Airways Ltd v Transport Workers Union of Australia (2023) 278 CLR 571; [2023] HCA 27 at [45], where the plurality (Kiefel CJ, Gageler, Gleeson and Jagot JJ) stated:

The focus of s 340(1)(b), in prohibiting adverse action "to prevent the exercise of a workplace right", is the future exercise of a workplace right, not the present existence of a workplace right. The words "to prevent", as has been emphasised, are directed to a substantial and operative reason for the taking of the adverse action and mean, in this context, "in order to prevent" or "with a view to preventing". To "prevent" is to preclude the occurrence of an anticipated event or to render the event impractical or impossible by anticipatory action. To "prevent the exercise of a workplace right" encompasses stopping or putting an obstacle in the way of the exercise of a presently held right. But equally, it encompasses putting an obstacle in the way of exercising a right that may arise at some future date.

(footnotes omitted)

1. Further, as was made clear at [278] of Lee J's reasoning, not disturbed on appeal, in Transport Workers' Union of Australia v Qantas Airways Ltd (2021) 308 IR 244; [2021] FCA 873, "[s]ection 340(1)(b) contemplates acts to prevent employees exercising workplace rights by preventing circumstances arising whereby those rights could be exercised".
2. As the evidence before me exposes, there are a number of contests between the parties as to the reason for the dismissal of Mr Mooney.
3. The respondent contended that there was no causal connection between the decision to dismiss Mr Mooney and his exercise of workplace rights and attributes of union membership and as an "officer". Further, the respondent submitted, although Mr Mooney's dismissal was adverse action it was not taken for a prohibited reason. The respondent contended that the context surrounding Mr Mooney's performance review was critical. It was at around halfway through his qualifying period. According to the respondent, nothing should be made of the time which elapsed between the negative performance appraisal and the dismissal as, for part of the time Mr Mooney was on leave, and in any case, he represented no imminent risk to PIM. On the respondent's case the focus was on the end of the qualifying period, which was deliberately calculated to align with the statutory minimum period after which an employee is entitled to recourse under the unfair dismissal legislation.
4. Similarly, that Mr Mooney had been given no negative feedback was, the respondent submitted, explicable by the qualifying period and the belief of Mr Mastilovich that the provision of negative feedback was unnecessary in those circumstances. The nature of the performance appraisal was, in the respondent's submission, consistent with an appraisal to determine whether an employee should be retained beyond the qualifying period. The review took feedback from Mr Mooney's supervisors which was signed off and relied upon as the basis for the dismissal. The respondent contended that there were notes and examples to support the ranking given to Mr Mooney, and ultimately Mr Mastilovich used those rankings by reference to a mathematical calculation to determine where Mr Mooney fell with respect to the cut off level within the total rankings considered to justify dismissal. To the extent that the notes contained in the appraisal form were brief, the respondent submitted that also was consistent with the nature of the appraisal, that is, it took place with respect to 70 employees to determine who should be retained beyond the qualifying period. In any case, the respondent argued, the form allowed very little room for comments and examples.
5. The respondent also submitted that the meeting which took place on 6 December 2024 was not a performance review for Mr Mooney. The respondent contends that the words "there are no issues with him from the floor" were not said. The respondent supported that by submitting that it was unlikely such positive words would have been said shortly after the negative performance review had taken place. Further, if those words were said, the respondent argued, it is not clear what was meant by them in the context of PIM's assessment of Mr Mooney.
6. With respect to the evidence regarding the other employees dismissed at the same time as Mr Mooney, the respondent submitted that it should be given no weight and that it could not support any "safe inference" being drawn. The respondent elaborated upon this submission pointing to the insufficiency of evidence as to the circumstances of the other employees' dismissal, and for that matter, the circumstances of employees not dismissed. For example, employees not dismissed may also have raised safety concerns. The respondent also submitted that Mr Mooney's dismissal should be distinguished, and considered separately, from the dismissals of the other employees.
7. There may be some force to the explanations for Mr Mooney's dismissal sought to be advanced by the respondent. However, the sum of the timing of the safety complaints made by Mr Mooney, relative to his performance review and dismissal, the failure to raise any concerns as to his performance with Mr Mooney prior to his dismissal, the delay between the performance review in November 2024 and the dismissal in January 2025, and the absence of tangible examples of his poor attitude and "fit" for PIM give rise to an arguable circumstantial case that the dismissal was for a prohibited reason. This is only amplified by the lack of clarity surrounding the purpose and content of the meeting on 6 December 2024.
8. The applicants submitted that the reverse onus in s 361(2) of the FWA should be considered in assessing the strength of their prima facie case. The applicants asserted that the preferred interpretation of the reverse onus provision in s 361(2) of the FWA to be adopted is that of Ryan J in Police Federation of Australia v Nixon (2008) 168 FCR 340; [2008] FCA 467 at [68] - [69]. This would indicate that the reverse onus, as a factor which exists at trial, should be considered in assessing whether there is a prima facie case. Contrastingly, the respondent argued that the approach which should be adopted is one explained by Snaden J at [52] of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v O-I Operations (Australia) Pty Ltd [2019] FCA 1272. This would indicate that the operation of the reverse onus in s 361(2) of the FWA is clearly excluded from consideration at an interlocutory level. Further, the respondent argued cases decided to the contrary are plainly wrong.
9. As I conclude that there is a prima facie case that adverse action has been taken by the respondent against the applicants for a prohibited reason on the basis of the evidence discussed above, I have not considered the interpretation of the reverse onus provision in s 361(2) of the FWA.

Does the balance of convenience weigh in favour of the applicant?

1. The parties are at odds as to where the balance of convenience lies.
2. The applicants' submissions included that:
   • The CFMEU provided the Court with the usual undertaking as to damages.
   • The reinstatement of Mr Mooney will not place him in a better position than he would have been in should PIM be successful at trial, considering the terms of the order sought.
   • The reinstatement of Mr Mooney would ameliorate the economic and non-economic harm he suffered as a result of loss of employment.
   • The reinstatement of Mr Mooney would prevent him being denied the benefit of full-time and ongoing employment.
   • The reinstatement of Mr Mooney would restore his enjoyment, mood and relationships with others.
   • The reinstatement of Mr Mooney is achievable, as Mr Mooney is "ready, willing and able" to recommence his employment with PIM.
3. The applicants also submitted that were the Court to adopt the wording of the amended draft order, Mr Mooney, if reinstated, would not be placed in a better position than he would have been in, should PIM be successful at trial. This is because, on the applicants' case, the draft order makes clear it would not require PIM to consider any such work rendered by Mr Mooney in satisfaction of the qualifying period of his employment. That submission must be accepted.
4. The applicants contended that Mr Mooney would suffer economic and non-economic harm, as a result of his loss of employment, which would be ameliorated by reinstatement. In terms of economic harm, Mr Mooney will be denied the benefit of full-time and ongoing employment. He owns two properties and has two mortgages. He has concluded that he should not persist with plans to build a second dwelling on one of the properties and that he should sell one of them to ensure some financial security during his unemployment.
5. The applicant also submitted that Mr Mooney's dismissal deprived him of his enjoyment of his employment, and his satisfaction in his roles as a HSR and CFMEU delegate. It is now well established that work is seen as beneficial and important beyond the payment received: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70; [2013] FCA 525 at [114]; Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539; [2005] HCA 22 at [32], [80]; William Hill Organisation Ltd v Tucker [1998] EWCA Civ 615; [1999] IRLR 313; [1999] ICR 291 at 299; Quinn v Overland (2010) 199 IR 40; [2010] FCA 799 at [102] - [103]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers' Union (AMWU) v McCain Foods (Aust) Pty Ltd [2012] FCA 1126 at [47] - [48]; Elisha v Vision Australia Ltd (2024) 99 ALJR 171; [2024] HCA 50 at [67].
6. Next, the applicants submitted that Mr Mooney felt "awkward" and "embarrassed" since his dismissal. Mr Mooney felt "depressed and has lost his trust in people". As Mr Mooney and his wife were trying to conceive through IVF treatment, Mr Mooney expressed concerns about the effect of "stress" caused by his dismissal upon his wife.
7. The applicants also contended that Mr Mooney's reinstatement would have a positive benefit for PIM employees, the CFMEU and its members. The applicants submitted PIM employees, the CFMEU and its members' deprivation of "effective workplace representation" could be a "highly relevant factor" going to the balance of convenience, relying upon McCain Foods (Aust) Pty Ltd at [50].
8. In advancing this submission, the applicants emphasised that Mr Mooney was the CFMEU's only member and delegate who had been elected as an HSR at PIM and that "no-one else has been willing to replace Mr Mooney as HSR". The applicants submitted that the interests of the other PIM employees had been "prejudiced by a reduction in the numbers of HSRs providing effective health and safety representation". Further to this, the applicants submitted that cl 41.2.1 of the PIM Agreement implies that employee representatives will be available for PIM employees.
9. The respondent disputed the extent of both the economic and non-economic harm to Mr Mooney, pointing to his failure to provide "financial information or documentation" going to his financial circumstances. The respondent also contended that there was evidence that there were "comparable roles" which Mr Mooney could have sought, which would have "ameliorate[d] any economic loss and non-economic harm". There was disagreement between the parties as to whether the roles proposed were indeed comparable. In any case, the evidence in question was scant and not persuasive.
10. While conceding that third parties and the public may suffer detriment should an injunction be refused, the respondent submitted that the weight to be attributed to such a consideration is dependent upon the circumstances, relying on Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 at [65] - [66]. The respondent submitted that PIM is not required by legislation to have HSRs onsite, and that in any case it is "actively" seeking employees to fill the HSR role. Further, the respondent submitted that the CFMEU can "appoint another delegate" at the mine. The respondent contended that McCain Foods (Aust) Pty Ltd was not analogous to this case as the experience and effectiveness of Mr Mooney as a delegate had not been established. The respondent also submitted that there was evidence that since Mr Mooney's dismissal there had been no detriment to its safety outcomes.
11. I accept the applicants' submissions that both the CFMEU and other PIM employees have a direct interest in Mr Mooney being reinstated to his role and in his capacity as a union delegate and HSR, on the basis that Mr Mooney was the only CFMEU delegate who also held a HSR role, and that PIM employees may be prejudiced by having one less HSR to voice their health and safety concerns, in circumstances where there is currently no other member of the CFMEU willing to nominate for the role of a HSR.
12. I am persuaded of the desirability that employee representatives will be made available to PIM employees on the basis of their important role in maintaining health and safety.
13. The applicants submitted, and I accept, that Mr Mooney has some experience in the role of a HSR, given he has occupied such a role in 10 previous employments. I also accept that Mr Mooney was a very active HSR, who took his role seriously and derived satisfaction from ensuring the safety of his fellow employees at the mine. As to the respondent's contention that the balance of convenience does not favour reinstatement as Mr Mooney was dismissed due to his unsatisfactory performance, given I have concluded there is a serious question to be tried, I do not consider this to be a persuasive argument, particularly given the respondent has failed to point to any prejudice it will suffer.
14. The respondent submitted that there was an "unexplained delay" of approximately 30 days between Mr Mooney's dismissal and the applicants bringing their application. Without a "reasonable explanation", the respondent submitted that delay can be "sufficient" to warrant dismissal of an interlocutory application, relying upon Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd and Others [1988] FCA 205; (1987) 76 ALR 633 at 638 - 639.
15. The applicants submitted in reply that the explanation for the timing of the application to this Court was informed by the filing of the application in the Fair Work Commission, and whether any other member of the CFMEU employed by PIM would nominate as a HSR. The applicants submitted that these proceedings were commenced soon after those events crystallised. Taking the intervening steps into account and considering that the delay was not great, I am not persuaded by the respondent's submissions as to delay.
16. Finally, having regard to the historically cautious approach adopted with respect to the grant of mandatory injunctions in relation to reinstatement, the applicants submitted that the powers conferred by the FWA, which enable the Court to order reinstatement as a remedy, should remove "any reluctance" of the Court in that regard. The applicants pointed to Communications, Electrical, Electronic, Energy, Information, Postal and Allied Services Union of Australia v Dee Vee Pty Ltd [2012] FCA 988, in which Tracey J ordered reinstatement in similar terms to the order sought in this matter.
17. Conversely, the respondent submitted that the Court's widespread powers under s 545 of the FWA to order compensation, reinstatement, and to remedy the effects of contraventions, amongst other things, were sufficient remedies available to the applicants at the time of the substantive determination. However, given that the inadequacy of damages is not a necessary precondition for the granting of final injunctive relief under the FWA, which is, inter alia, what is sought in this case, I do not consider the adequacy of damages to be of much relevance. In any case, it is difficult to see how damages could be an adequate remedy for the non-economic harm suffered by Mr Mooney.
18. Taking the above into account, I consider that the balance of convenience favours the applicant. The evidence was that Mr Mooney has and will suffer economic harm due to the loss of income. He will be deprived of the work he has been doing. There is also uncontested evidence that Mr Mooney and his wife are trying to conceive through IVF, and that Mr Mooney is concerned about the effect of the "stress" caused by his dismissal upon his wife.
19. The further evidence is that the employees of PIM and the public will benefit from Mr Mooney's reinstatement and the concomitant advantage that he will be able to fill the role of HSR and CFMEU delegate. While the respondent made submissions as to alternative measures being adopted by PIM to bolster health and safety there was little evidence to support the submissions, some of which proceeded on the misconception as to the operation of the FWA, the workplace instrument and the OH&S Act.
20. I am therefore satisfied that the balance of convenience favours the applicants.

1. The applicants' application for an interim injunction reinstating Mr Mooney to his employment at PIM be granted.

I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher.