consideration
11 In Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [19], Gleeson CJ and Crennan J found that, in circumstances where an applicant seeks interlocutory relief, it is necessary for the plaintiff to demonstrate that:
there is a serious question to be tried as to the plaintiff's entitlement to relief;
the plaintiff is likely to suffer injury for which damages will not be an adequate remedy; and
the balance of convenience favours the granting of an interlocutory injunction.
12 In respect of the issue whether there is a "serious question to be tried", Gummow and Hayne JJ held at [65]-[72], in summary, that:
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;
it is not necessary that the plaintiff demonstrate more than a 50 per cent chance of ultimate success;
the issue may be understood as whether the plaintiff has made out a prima facie case for relief; and
it is relevant to consider practical consequences likely to flow from the interlocutory order sought. Particular considerations arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application.
13 In Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 the Full Court noted at [67] that, in considering whether to grant an interlocutory injunction, the issue of whether the plaintiff has made out a prima face case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries, and the apparent strength of the parties' substantive cases will often be an important consideration to be weighed in the balance.
14 At the hearing, I raised with Counsel for both parties the issue of whether I should, at this point of the proceedings, determine the question of statute bar on the basis of s 725 of the FW Act. I note that:
BMA claims that the proceedings are statute barred because of s 725 of the FW Act;
the union argues that the proceedings are not statute barred;
both parties have advanced arguments supporting their respective positions, and both accepted at the hearing that the position was arguable; and
there is no Federal Court authority relevantly considering this issue in terms raised by BMA.
15 Whether the union's claim is statute barred is an anterior question to the substantive relief sought in the primary proceedings. In its substantive application, the union claims adverse action by BMA against Ms Star for reasons prohibited by the FW Act - however the interlocutory application currently before me requires consideration of whether (inter alia) there is a serious question to be tried as to the union's entitlement to the final relief it has sought. If the proceedings were clearly statute barred because of s 725, it would be futile for me to grant the interlocutory relief sought. However, this is not the case. I put it to the parties at the hearing that, in this light, the anterior question relating to s 725 is more properly to be determined in the substantive proceedings, and is, at best, a neutral issue as to the question of whether the Court ought grant an interlocutory injunction. Neither party demurred from the Court adopting this approach. It follows that, for present purposes, I make no findings in respect of whether the proceedings are statute barred, but simply note that this is a contention advanced by BMA in relation to the union's claim for relief.
16 Turning now to the question whether the union is entitled to the interlocutory relief it has sought - I am satisfied that the union has substantiated its claim.
17 First, I am satisfied that there is a serious question to be tried in terms described by the High Court in O'Neill. Counsel for BMA argued that, if the Court accepted the evidence of Mr Gee, then that was, in essence, the end of the matter. However, as Counsel for the union quite properly submitted, the position is not so absolute. In particular:
The union's claim against BMA concerns adverse action within the meaning of s 342 item 3 and s 362 of the FW Act. The contraventions alleged by the union can only be made out if the Court is satisfied that BMA acted for a prohibited reason or reasons in taking that adverse action.
As has been noted in number of cases, the reversal of the onus of proof provided by s 361(1) of the FW Act in relation to the prohibited reason is still to be taken into account in determining the strength of the prima facie case when the grant of an interlocutory injunction is being considered: Police Federation of Australia v Nixon [2008] FCA 467; (2008) 168 FCR 340 at [69] (Ryan J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563; (2012) 64 AILR 101-641 at [63] (Greenwood J); Construction, Forestry, Mining and Energy Union v Downer EDI Engineering Power Pty Ltd [2012] FCA 661 at [12] (Logan J); 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; (2012) 64 AILR 101-753 at [45] (Bromberg J); Construction, Forestry, Mining and Energy Union v Eco Recyclers Pty Ltd [2013] FCA 24 at [44] (Bromberg J).
The union has identified alleged exercise by Ms Star of workplace rights within the meaning of the FW Act, and adverse action (namely demobilisation) proximate in time to the exercise of those workplace rights. It is not in dispute that, because of a decision by a person in BMA, action was taken which constituted adverse action against Ms Star within the meaning of s 340 of the FW Act on 10 November 2017. The disputes identified at the hearing before me concerned whether the undertaking of a random drug test by Ms Star was the exercise of a workplace right, and whether the adverse action against her was taken for a prohibited reason or reasons.
No reasons for the demobilisation of Ms Star by BMA have been advanced, at this stage, by BMA. As French CJ and Crennan J observed in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 (Barclay) at 517 [44],[45], whether adverse action was taken for a prohibited reason or reasons is a question of fact, which must be answered in light of all the facts established in the proceeding, and generally it will be extremely difficult to displace the statutory presumption in s 361 of the FW Act if no direct testimony is given by the decision-maker acting on behalf of the employer.
The only direct testimony at this stage tendered on behalf of BMA is that of Mr Gee. As Mr Borenstein QC for the union submitted, the basis on which Mr Gee claimed to be the decision-maker ordering the demobilisation of Ms Star is not apparent.
In his affidavit, Mr Gee deposed that he had made a decision on or about 6 November 2017 that Ms Star be demobilised and, it appears, banned from the mine site. I note that Mr Gee's evidence was that this decision predated the alleged exercise of the workplace rights by Ms Star, and that he was unaware of the events of the night of 9 November 2017 until he read the decision of the Fair Work Commission concerning Ms Star's unfair dismissal application against WorkPac. While this is sworn evidence on Mr Gee's part, there is no documentation supporting this evidence, in particular when the relevant decision was made. I note, however, that Mr Gee does give evidence that he was aware, on 10 November 2017, of an apparent exceeding of allocated crib times by Ms Star. Otherwise, I am not in a position to unreservedly accept Mr Gee's evidence that his decision to demobilise Ms Star predated 10 November 2017, as urged upon me by Counsel for BMA at the hearing. In the absence of supporting documentation, I can give this evidence only limited weight in the context of the reversed onus of proof borne by BMA in the substantive proceedings.
I note the submissions by Counsel for BMA that, as a matter of common sense, it could not be inferred that BMA would demobilise Ms Star as a result of her conduct on the night of 9 November 2017, and further that there is no reason for Mr Gee to explain his decision to demobilise Ms Star when that decision predated the events of 9 November 2017. However, in the circumstances of this case, and particular the absence of explanation by BMA in terms described by French CJ and Crennan J in Barclay, I am not persuaded that there is no prima facie case in the terms claimed by the applicant. Counsel for BMA submitted that BMA took no issue with Ms Star's conduct, however this submission is not supported by evidence. Indeed this gets back to a fundamental problem with the position taken by BMA in these proceedings - namely, that it is completely unclear as to why Ms Star was demobilised in light of her apparently previously exemplary conduct. The contention that Mr Gee is not obliged to explain his reasons for his decision to demobilise Ms Star cannot be supported in light of the onus on BMA imposed by the FW Act, and the case BMA is required to answer in the substantive application.
18 Second, the evidence before the Court indicates that Ms Star has not suffered financial or professional detriment as a result of BMA's action in demobilising her from the mine. However Ms Star deposes to have experienced harm in her personal life as a result of that demobilisation. BMA submits that Ms Star's evidence in this respect is vague and unsubstantiated. While I consider Ms Star's evidence of harm to be unexceptional, and there is merit in BMA's contentions concerning the absence of particularisation on Ms Star's part, nonetheless I consider that there is adequate detail of harm claimed by her for the purposes of these interlocutory proceedings. In particular, I note her evidence concerning shifts, previous commonality of shifts with her partner at the mine, and diminution of her relationships with co-workers at the mine.
19 Third, I am satisfied that the balance of convenience favours Ms Star. I note BMA's contention concerning the delay in the commencement of these proceedings However, as Mr Borenstein QC for the union submitted, the delay can be explained by the fact that Ms Star had commenced proceedings for unfair dismissal against WorkPac in the Fair Work Commission. At the hearing, BMA took no issue with this explanation.
20 Perhaps more to the point, however, BMA has adduced absolutely no evidence of inconvenience to it should Ms Star be successful in obtaining interlocutory relief. The only inconvenience submitted by Counsel for BMA was that BMA did not want Ms Star on the mine site. At this stage there is no evidence of commercial, human resources, or other detriment to BMA if Ms Star were "remobilised" to work at the mine. There is, for example, no evidence of wrongdoing on Ms Star's part which would cause concern to BMA should she return to work at the mine, or indeed any concern at all on BMA's part in respect of Ms Star's skills or work performance. In fact, the only inference I am able to draw from the material before me is that, for unknown reasons, Mr Gee does not want Ms Star to return to work at the mine. This apparent, unexplained preference of Mr Gee can be contrasted with the personal detriment deposed to by Ms Star. In this respect, the applicant substantiates its case for interlocutory relief.