Health Services Union v Asmar

Federal Court of Australia|2024-12-13|Before: Mr J, Dowling J

THE COURT ORDERS THAT:

Pending the final hearing and determination of this proceeding, the stand down and investigation of Mr Jake McGuinness is stayed with immediate effect.
Pending the final hearing and determination of this proceeding, the stand down and investigation of Mr Ray Collins is stayed with immediate effect.
Pending the final hearing and determination of the proceeding, the first respondent be restrained from carrying out the duties of the office of Branch Secretary.
Pending the final hearing and determination of this proceeding, the respondents be restrained from taking (directly or indirectly, including by or through another respondent) the following action against the applicant's employees performing work in its Victorian No. 1 Branch: (a) dismissals; (b) disciplinary action of any kind (including but not limited to suspensions from duty on pay, directions about the place where work is to be performed or action that threatens the security of employment); (c) changing duties; or (d) changing the way work is customarily performed. Unless they have given 14 days' written notice of their intention to take that action, to the employee, and to the National Secretary. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DOWLING J 1 This is an interlocutory application seeking orders pending the hearing and determination of an originating application made by the Health Services Union. The Union's originating application is made under s 323 of the Fair Work (Registered Organisations) Act 2009 (Cth) and seeks a declaration that its Victorian No. 1 Branch has ceased to function effectively, and that there are no effective means under the rules of the Union to enable it to function effectively. The originating application also seeks the approval of a scheme of administration to enable the Branch to function effectively. This interlocutory application seeks orders: (1) restraining Ms Diana Asmar, the Branch Secretary, from continuing to carry out her duties as Branch Secretary; (2) reinstating five Branch employees made redundant; (3) cancelling the stand down of two further Branch employees, Mr Jake McGuinness, the Branch Chief Communications Officer, and Mr Ray Collins, Industrial Organiser; and, (4) restraining the Branch Committee of Management (BCOM) from affecting the employment of any Branch employees without the approval of the Union's National Executive. 2 The matter was the subject of an earlier interlocutory application that resulted in my reasons and orders dated 7 October 2024: Health Services Union v Asmar [2024] FCA 1168. In that earlier interlocutory application, the Union contended that the Branch had ceased to function effectively for three main reasons. First, because of allegations of impropriety made by the General Manager of the Fair Work Commission in separate proceedings (the FWC proceeding). Those allegations are serious and allege: Ms Asmar was illegitimately reimbursed for over $120,000 worth of payments by the Union; and, that between June 2016 and June 2021, the Branch bank account made a number of payments totalling more than $2,700,000 to Southern Publishing, a printing company that did not provide any goods or services to the Union, and from whom Ms Asmar (and Mr David Asmar, Ms Asmar's husband) received cash back. The Union accepted those allegations are so far unproven but said they created a material risk of harm. Second, the Union pointed to the Branch's failure to take effective action in response to those allegations. Third, the Union relied upon threats and reprisal action alleged to have been taken towards Branch officers and employees for their role in raising or tabling those allegations, or participation in this and other proceedings. 3 Relevantly, the earlier interlocutory application sought orders that Ms Asmar be restrained from authorising or transferring Branch funds and from directing, controlling or dismissing any employee of the Union. However, it was not necessary for me to determine whether those orders should be made because Ms Asmar gave undertakings to the Court dealing with those and other matters. Those undertakings were designed to maintain and protect the status quo pending the hearing and determination of the Union's originating application. It is now alleged Ms Asmar and some of the other respondents did not comply with certain of those undertakings (the undertakings are set out below). 4 In the earlier interlocutory application Ms Asmar and most of the other the respondents accepted that the Union had established a prima facie case that the Branch has ceased to function effectively and that there were no effective means under the rules of the Union to enable it to function effectively. However, they said that it was a weak serious question. I found that the serious question was much more than weak: Health Services Union v Asmar at [78]. 5 After the giving of the undertakings, and the making of my orders on 7 October 2024, the matter was the subject of a case management hearing on 18 October 2024. At that hearing, timetabling orders were made, and the matter was then allocated eight hearing dates commencing on 28 April 2025. 6 On 15 November 2024, the Union filed this interlocutory application. In summary this application relies on five matters that have occurred since my orders of 7 October 2024 and that the Union says justify the orders it seeks in this interlocutory application. Those five matters are: (1) The stand down of Mr McGuinness for "serious allegations of potential gross misconduct" (and said by the Union to be reprisal conduct in breach of undertakings (d)(ii)b., (d)(ii)e., and (d)(ii)f.); (2) The stand down of Mr Collins (said by the Union to be reprisal conduct in breach of undertakings (d)(ii)b., (d)(ii)e., and (d)(ii)f.); (3) The lack of cooperation with, and the failure to provide information to, the national office of the Union (said by the Union to be in breach of undertakings (f)(i) and (ii); (4) the lack of cooperation with, and the failure to provide information to, Mr David Eden, the Assistant Branch Secretary (said by the Union to be in breach of undertaking (e)(iii)); and (5) the redundancy of five employees of the Branch (said by the Union to be in breach of undertakings (d)(ii)b. and (h)); 7 Mr Eden, the third respondent and Branch Assistant Secretary, supports the interlocutory orders sought in this application. Of the other respondents, only Ms Asmar, the first respondent, appeared and made submissions against the interlocutory orders. There was no dispute that the other respondents were served and on notice of the interlocutory hearing. Ms Asmar accepted in the interlocutory application, as she had done in the earlier interlocutory application, that there was a serious question to be tried that the Branch has ceased to function effectively and that there are no effective means under the rules of the Union to enable it to function effectively. 8 Where that serious question to be tried has been previously found, the issues in this interlocutory application are principally whether: the five events outlined above mean that there is a stronger serious question; and whether the balance of convenience favours the making of the orders sought. I separately deal with each of the five events below and the balance of convenience in respect of each order sought. 9 For the reasons that follow it is appropriate to make orders pending the hearing and determination of the originating application: (a) restraining Ms Asmar from continuing to carry out her duties as Branch Secretary; (b) staying the stand down and investigation of Mr McGuinness; (c) staying the stand down and investigation of Mr Collins; and (d) restricting the ability of the respondents to dismiss, discipline or change the duties and work practices of Branch employees.

JURISDICTION, POWER AND PRINCIPLES 10 As was the case with the earlier interlocutory application, there was no dispute between the parties that: (a) the Union's originating application properly invokes the jurisdiction of the Court under s 323 of the Act; (b) section 23 of the Federal Court of Australia Act 1976 (Cth) empowers the Court to make the orders sought in this interlocutory application; and (c) the well-established principles for the granting of interlocutory orders, as summarised in the earlier interlocutory application, apply here: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 at [65] - [72] per Gummow and Hayne JJ (with whom Gleeson CJ and Crennan J agreed at [19]); Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 at [67] (Dowsett, Foster and Yates JJ), citing, with approval, Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595; 81 IPR 339 at [15] (Sunberg J); Health Services Union v Asmar at [11] - [18].

THE AFFIDAVIT EVIDENCE 11 The Union read and relied on the following further affidavits in support of their application for interlocutory relief: (a) Fifth affidavit of Geoffrey Borenstein, solicitor for the Union, dated 15 November 2024; (b) Second affidavit of Mr Eden, Branch Assistant Secretary, dated 20 November 2024; (c) Sixth affidavit of Mr Borenstein, dated 21 November 2024; (d) Seventh affidavit of Mr Borenstein, dated 27 November 2024; (e) Eighth affidavit of Mr Borenstein, dated 28 November 2024; (f) Ninth affidavit of Mr Borenstein, dated 29 November 2024; and (g) Third affidavit of Mr Eden, dated 29 November 2024. In those affidavits, Mr Borenstein and Mr Eden set out the circumstances of the five matters that the Unions says have occurred since 7 October 2024. 12 Ms Asmar read and relied on the following further affidavits in support of her opposition to the interlocutory relief: (a) Affidavit of Eve El Sheikh, Branch Member Assist Team Leader, dated 25 November 2024; (b) Affidavit of Imad El Zind, Branch Information Technology Manager, dated 25 November 2024; (c) Affidavit of Rhonda Barclay, Branch Receptionist and Membership Officer and President, dated 26 November 2024; (d) Affidavit of Violeta Petkoski, Branch Staff Coordinator, dated 27 November 2024; (e) Affidavit of Lee Atkinson, Branch Senior Lead Organiser and Senior Vice President, dated 27 November 2024; (f) Affidavit of Erkan Sakaci, Branch Business Administrator, dated 2 December 2024; (g) Second affidavit of Antonia Sakkas, solicitor for Ms Asmar, dated 2 December 2024; and (h) Second affidavit of Mr Atkinson, dated 2 December 2024. Those affidavits also addressed the five matters that have occurred since 7 October 2024 and supported orders dismissing the interlocutory application.

THE UNDERTAKINGS OF MS ASMAR AND CERTAIN RESPONDENTS 13 Where it is alleged that Ms Asmar and certain respondents breached the undertakings given by them in the earlier interlocutory application, it is necessary for me to set out the terms of those undertakings. Those undertakings provided: UPON THE FIRST RESPONDENT BY HER COUNSEL UNDERTAKING: a) That until the hearing and determination of the Originating Application or further order, she shall not authorise the external transfer or disbursement of any funds held or controlled by the Victoria No. 1 Branch of the Applicant (the Branch) unless the cash reserve of the Branch is at least $100,000, and the transfer or disbursement: (i) is to an existing external goods or services provider of the Branch for an amount less than $3,000, and is not a payment for the benefit of the First Respondent or the Third Respondent; or (ii) is a payment of the following scheduled business expenses of the Branch: rent, telephone, road tolls, electricity, water, internet and any other utilities, tax payments, worker's compensation payments, and remuneration for employees and officers; or (iii) is authorised in accordance with the resolution of the Committee of Management of the Branch dated 3 September 2024 which is titled "Resolution - Interim Measures"; b) That a copy of all the material provided pursuant item 4(b), of the resolution of the BCOM dated 3 September 2024 entitled "Resolution - Interim Measures", will be copied to the National Secretary of the HSU at the same time as it is provided to the BCOM members and Connect National Audit. c) That until the hearing and determination of the Originating Application or further order, she shall not give any direction to the Second, Fourth, Eighth, Ninth and Tenth Respondent other than in their capacity as employees of the Applicant who are employed in the Victoria No. 1 Branch. d) That until the hearing and determination of the Originating Application or further order, she shall: (i) not give any direction to any employee of the Applicant employed in the Victoria No. 1 Branch other than to direct the employee as to the manner in which he or she performs the duties and functions of the employment that he or she has been employed to perform; and (ii) not: a. act on the resolution passed at the Branch Committee of Management on 8 April 2024 directed to the Third Respondent; b. take any disciplinary action (including dismissal) against any employee of the Victoria No. 1 Branch; c. direct an employee of the Victoria No. 1 Branch to work from home (unless requested by the employee); d. not [sic] alter the duties or functions of an elected official or an employee's employment; e. direct that an employee or elected official perform no duties; and f. procure or direct another to take any of the actions or directions referred to in subparagraphs (a.) to (e.) above. e) That until the hearing and determination of the Originating Application or further order, she will: (i) by 9am on Wednesday, 25 September 2024, reinstate the Third Respondent's IT access including access to all Victoria No. 1 Branch servers and to his Victoria No. 1 Branch email address; (ii) communicate to the Third Respondent the date, time and location of any future Branch Committee of Management (BCOM) meeting; (iii) upon reasonable notice before a BCOM meeting, provide to the Third Respondent all relevant agendas, minutes, draft resolutions and any other document to be placed before or considered at the BCOM meeting; and (iv) not procure any process under Rule 54 of the HSU Rules in relation to any allegation of misconduct made against the Third Respondent where such conduct is alleged to have occurred in the period 1 January 2024 to 20 September 2024. f) That until the hearing and determination of the Originating Application or further order she will provide the following to the National Secretary of the HSU within 24 hours of receipt: (i) a copy of any report provided to BCOM by the Branch Secretary or Assistant Branch Secretary, in accordance with Direction 2 of the resolution on 3 September 2024 entitled "Resolution - Interim Measures". (ii) A copy of any report provided to them by Connect National Audit. UPON THE SECOND, FOURTH, SEVENTH, AND NINTH TO FIFTEENTH RESPONDENTS BY THEIR COUNSEL UNDERTAKING: g) until the hearing and determination of the Originating Application or further order, will not act on the resolution passed at the BCOM on 8 April 2024 directed to the Third Respondent. h) until the hearing and determination of the Originating Application or further order, the second, fourth, seventh and ninth to fifteenth respondents shall not dismiss any employee of the Applicant who is employed in the Victoria No. 1 Branch from their employment unless they have given 14 days' written notice of their intention to dismiss the employee, to the employee, and to the National Secretary. i) until the hearing and determination of the Originating Application or further order, procure any process under Rule 54 of the HSU Rules in relation to any allegation of misconduct made against the Third Respondent where such conduct is alleged to have occurred in the period 1 January 2024 to 20 September 2024. 14 Ms Asmar proffered a further undertaking in this interlocutory application, as a variation to undertaking (d)(ii)(b), as follows: "take any disciplinary action (including dismissal) against any employee of the Victoria No. 1 Branch, or dismiss any employee of the Victoria No. 1 Branch for any reason including by reason of redundancy" 15 Further, Ms Asmar has informed her solicitors that the second, fourth and seventh to fifteenth respondents informed her that they sought leave to vary undertaking (h) in the following way: "Until the hearing and determination of the Originating Application or further order, the second, fourth, seventh and ninth to fifteenth respondents shall not dismiss any employee of the Applicant who is employed in the Victoria No. 1 Branch from their employment for any reason (including by reason of redundancy) unless they have given 14 days' written notice of their intention to dismiss the employee, to the employee, and to the National Secretary." 16 The Union complained, and I accept, that that is not a reliable basis upon which the Court can accept an amended undertaking from those respondents. I weigh Ms Asmar's proffered amended undertaking with the matters below. I do not weigh the purported amended undertaking of the second, fourth and seventh to fifteenth respondents.

THE STAND DOWN OF MR MCGUINNESS 17 As the undertakings above make clear, Ms Asmar relevantly undertook: not to take any disciplinary action against any Branch employee; not to alter the duties or functions of any Branch employee; and, not to procure those things: see undertakings (d)(ii)b., (d)(ii)e., and (d)(ii)f. 18 On 11 November 2024, Mr McGuinness was notified in correspondence from Ms Barclay, that he was to be stood down, with immediate effect, from his duties with the Branch because of "serious allegations of potential gross misconduct". In that correspondence Mr McGuinness was not told any details of the allegations but was told "an external investigator will be appointed" and that "specific details regarding the allegations will remain confidential". 19 It is necessary to revisit some of the events concerning Mr McGuinness that were the subject of the earlier interlocutory application. In that application there was evidence from Mr Borenstein (on information that he had received from Mr McGuinness and Mr Eden) that: (a) On 7 April 2024, Mr McGuinness attended a meeting at Ms Asmar's home. Mr McGuinness said that meeting included Ms Asmar, Mr Katsis, Mr Atkinson and Mr Ioanidis. At that meeting Ms Asmar said Mr Eden must be stood down immediately, and that Mr Eden would be investigated for bullying (purportedly in response to attempts by him to table correspondence from the FWC setting out investigations concerning Ms Asmar). (b) On 7 April 2024, Mr McGuinness attended a further meeting involving many of the members of the BCOM at the Keilor Hotel. Mr McGuinness says at that meeting Ms Asmar said: Mr Eden must be stood down; that the Branch would look to investigate Mr Eden for his recent conduct at work; the Branch will look to dismiss him from employment at the end of the investigation; and that Mr Eden has betrayed Ms Asmar and been disloyal. Ms Asmar said Mr Eden would be stood down and a motion would be moved at the BCOM the following day. Such a motion was moved the following day. (c) On 14 August 2024, Mr McGuinness attended another meeting at Ms Asmar's home. At that meeting there was a discussion concerning Ms Brianna Macks who had brought charges against Ms Asmar under the rules of the Union consistent with some of the matters raised by the FWC proceeding. Mr McGuinness informed Mr Borenstein that Ms Asmar had said: "BCOM has given me the authority to do what the fuck I want … Of course, I will shut her down and of course I will shut … And I told you, you don't know what I'm up to mate. I am going to kill her, do you understand. She's going to regret the day she was born. She... I haven't started yet. And I haven't started with David Eden. You wait and see what's going to happen. These people end up resigning and saying fuck it, they got cancer and shit like that." (d) Mr McGuinness also informed Mr Borenstein that at that meeting on 14 August 2024, the meeting discussed providing compromising photographs of Ms Macks to the media. (e) On 30 August 2024 Mr McGuinness had a discussion with Ms Asmar in which she said to him that she wanted to bring a series of charges about Ms Macks to the Branch Committee of Management (BCOM). 20 The evidence in the earlier interlocutory application was that shortly after the affidavits containing the above information were filed, Mr McGuinness was prevented from accessing; his work email account, the mass communication service used by the Branch for emails to members, and another mass communication service for text messages to members. It was contended by the Union that that prevention was reprisal conduct for the information provided to the Union by Mr McGuinness. 21 It was, in part, those circumstances concerning Mr Eden and Mr McGuinness that led to the undertakings given by Ms Asmar that she would not: take any disciplinary action against any Branch employee; alter the duties or functions of any Branch employee; nor procure those things. I explained in Health Services Union v Asmar that undertakings (c), (d) and (h) were to meet the concerns of the Union that no employee employed in the Branch is exposed to reprisal conduct: see Health Services Union v Asmar at [28], [29] and [31]. 22 Ms Asmar submits that the decision to stand down Mr McGuinness on 11 November 2024 was the result of the emergency meeting of the BCOM on 30 October 2024 and later the meeting of November 2024. She contends that she relevantly declared a conflict of interest in those meetings and did not make the decision to stand down Mr McGuinness and did not procure it. 23 Ms Asmar relies on the affidavit of Mr Atkinson at least where he states that: (a) He informed the BCOM on 30 October 2024 that he had received complaints about Mr McGuinness' failure to follow directions and attend work on time; (b) He suggested to the BCOM on 30 October 2024 that Mr McGuinness be stood down pending an independent investigation; and (c) At no time did Ms Asmar direct or propose the McGuinness investigation and that he proposed it because he felt that it was in the interests of the Branch that the serious complaints be properly investigated. 24 I have a number of concerns about the legitimacy of the stand down and investigation into Mr McGuinness and Ms Asmar's role in that process. 25 First, there is no evidence relied upon by Ms Asmar identifying who made the allegations against Mr McGuinness. There are no specifics of those allegations. There is no explanation about how those allegations might amount to "serious allegations of potential gross misconduct." 26 Second, the evidence was that Mr McGuinness reports to Ms Asmar and receives directions only from her; and that it is Ms Asmar who sets his times of work. Further, the evidence of Mr Eden was that when Mr Atkinson introduced the motion to stand down Mr McGuinness he said, amongst other things, "Jake has failed to take direction from Diana." Mr Atkinson's account was that he said he was "concerned that [Jake] was not following instructions." Those matters together with the fact that the allegations are "a failure to follow directions and attend work on time" provide an inference that it was Ms Asmar who made those allegations. That possibility must be assessed in the context of Ms Asmar's failure to produce any evidence about who made the allegations or any details about those allegations. 27 Third, on the very general allegations that do exist, the stand down may be disproportionate to those allegations. There was no explanation as to how a "failure to follow directions and attend work on time" justified an immediate stand down of Mr McGuinness. 28 Fourth, the evidence was that Ms Asmar had asked Ms Barclay to call the emergency meeting of the BCOM on 30 October 2024. The only matters to be raised at that meeting, and the only apparent purpose of that meeting, were the allegations and stand downs of Mr McGuinness and Mr Collins. There was no explanation as to why it was Ms Asmar who asked to call the meeting to deal with Mr McGuinness and Mr Collins, especially where the rules of the Union provide that Ms Barclay, as the Branch President, has the power to do so: see r 45(a) of the rules of the Union. 29 Fifth, the process in calling an emergency meeting on 30 October 2024 appears to be a somewhat irregular process, without notice to at least Mr Eden. There was no explanation as to why the matter of Mr McGuinness could not have been done on notice and with more specificity as to the allegations and the person or persons making them. 30 Sixth, the fifth affidavit of Mr Borenstein recounts (at [5]) that Ms Barclay, communicated to Mr Eden that Ms Asmar had said she needed to "do something" about Mr McGuinness in a meeting with Susan Stone and Ms Barclay on 22 October 2024. Whilst Ms Asmar relied upon an affidavit of Ms Barclay in this application, Ms Barclay did not respond to that paragraph of the fifth affidavit of Mr Borenstein. That, the Union contended, should be read in the context of Ms Asmar saying that the BCOM had "given her authority to do what the fuck [she] want[ed]." 31 Seventh, the fifth affidavit of Mr Borenstein states (at [6]) that Mr McGuinness told him that Ms Asmar gave a speech at the Branch's delegate's conference held on 23 October 2024 and said that "the biggest enemy were traitors within the union, who haven't seen what is coming yet, but who will get what is coming, and who will regret betraying her". Mr Atkinson, in his second affidavit (at [26]) denied that Ms Asmar said words to the effect of "they will get what is coming to them; and they have not seen what is coming but they will get it". However, Mr Atkinson did not deny that Ms Asmar had said: "the biggest enemy were traitors within the union." 32 I view those matters together with the circumstances concerning Mr Eden and Mr McGuinness set out at paragraphs [19] and [20] above. And particularly where on 17 September 2024, after having provided information to Mr Borenstein in this proceeding, Mr McGuinness was prevented from accessing his work email account and other information technology. 33 Based on those matters, I am satisfied that, for the purposes of a serious question, the stand down of Mr McGuinness strengthens the allegation that the Branch has ceased to function effectively and there are no effective means under the rules of the Union to enable it to function effectively. I am also satisfied, for the purposes of a serious question, that Ms Asmar played a role in the stand down of Mr McGuinness as reprisal conduct, I weigh that serious question, with the balance matters below, in assessing whether it is appropriate to enjoin Ms Asmar from carrying out the duties of the office of Branch Secretary. 34 I should add that the Union submitted that another reason to question the legitimacy of the stand down of Mr McGuinness (and Mr Collins and the five call centre employees) was that the BCOM did not have the power to discipline or dismiss employees of the Branch. The Union pointed to r 48(k) of the Union rules to submit that Ms Asmar had the exclusive authority to do so. That rule provides: The Branch Secretary shall - (k) subject to any direction of the Branch Committee appoint, engage, control and dismiss such clerical and other staff as may be necessary for the conduct of the affairs of the Branch; 35 Ms Asmar pointed to what she described as the expansive powers of the BCOM, particularly r 44(a), (d), (g), (h) and (l). That rule relevantly provides: A Branch Committee shall, subject to these rules and to the control of the Branch members as hereinafter mentioned, have power - (a) to transact all the business of the Branch; (d) to generally watch the interests of the Union in the area in which the Branch is established; (g) to direct the Branch Secretary and Branch Assistant Secretary in the performance of their duties; (h) to investigate grievances and disputes submitted by its members; (l) to take any action which in its opinion is in the interests of the Branch, provided that such action does not conflict with the policies of the Union; 36 Ms Asmar says where the BCOM can direct Ms Asmar to dismiss staff, it would be unusual if the BCOM did not have that power itself. There was no submission by the Union that r 48(k) gave Ms Asmar some residual discretion, such that Ms Asmar could refuse a direction of the BCOM. I see some force in Ms Asmar's submission, however, it is not necessary for me to determine that dispute for the purposes of this interlocutory application. I do not weigh this consideration in my assessment of the stand downs or dismissals.

THE STAND DOWN OF MR COLLINS 37 The undertakings said to be relevant to the stand down of Mr Collins are, like for Mr McGuinness, those that make clear Ms Asmar was: not to take any disciplinary action against any Branch employee; not to alter the duties or functions of any Branch employee; and, not to procure those things: see undertakings (d)(ii)b., (d)(ii)e., and (d)(ii)f. 38 The Union relies upon a number of events that it says are important context to the decision of the BCOM to stand down Mr Collins. Relevantly, it says: (a) at some time prior to Friday, 18 October 2024, Mr Collins told Ms Asmar that he was concerned about the allegations against her and thought she should stand down whilst the matters were being dealt with. (b) Mr Sakaci, who the Union alleges, and Mr Collins understands, generally acts on behalf of Ms Asmar, asked Mr Collins whether he had attended the FWC with Ms Barclay (in response to the FWC investigation into Ms Asmar and others). Whilst Mr Collins initially said no, he later (after Mr Sakaci visited his home) admitted that he had attended the FWC with Ms Barclay. Mr Collins alleges Mr Sakaci then said that Ms Asmar was taking steps to get rid of him and Mr McGuinness. (c) On 30 October 2024 and then 11 November 2024 the BCOM considered the motion to stand down Mr Collins. (d) On 28 November 2024, Mr Steven Tsitas, Industrial Officer, emailed Mr Williams, the National Secretary, to advise that Mr Atkinson had selected Page Seager lawyers to conduct the investigation into Mr Collins, and attached a signed engagement letter. That letter did not detail the allegations and at that time Mr Collins was not aware of the allegations against him. 39 The Union contends that, as for Mr McGuinness, the surrounding circumstances suggest an ulterior motive for the stand down of Mr Collins and suggest that Ms Asmar played some role in the stand down. 40 Ms Asmar relies on the affidavit of Mr Atkinson at least where he states that: (a) He informed the BCOM on 30 October 2024 that he had received complaints "from female staff" about Mr Collins' "aggressive behaviour". (b) Ms Petkoski made a complaint to him about Mr Collins regarding an incident that she alleges occurred on 17 September 2024. Ms Petkoski reported to Mr Atkinson that Mr Collins; shouted at her, called her incompetent and threw a credit card at her. Mr Atkinson also said that Ms Petkoski reported feeling stressed and intimidated by Mr Collins' conduct towards her. (c) Hiba Salem made a complaint to him about Mr Collins for an incident that she alleges occurred on 9 October 2024. Ms Salem reported to Mr Atkinson that Mr Collins raised his voice, invaded her personal space and pointed towards her chest in a threatening manner. Ms Salem also reported feeling anxious and distressed by the alleged conduct. (d) Gillian Anderson made a complaint to him that Mr Collins verbally abused her on 23 October 2024. This was alleged to have occurred on the night of the Branch delegates' dinner. (e) He suggested to the BCOM on 30 October 2024 that Mr Collins be stood down pending an independent investigation. (f) At no time did Ms Asmar direct or propose the Collins investigation and that he proposed it because he felt that it was in the interests of the Branch that the serious complaints be properly investigated. 41 I have a number of concerns about the legitimacy of the stand down and investigation into Mr Collins and Ms Asmar's role in that process. 42 First, as with the stand down of Mr McGuinness, the evidence was that Ms Asmar had asked Ms Barclay to call the emergency meeting of the BCOM on 30 October 2024. The only matters to be raised at that meeting, and the only apparent purpose of that meeting, were the allegations and stand downs of Mr McGuinness and Mr Collins. Again, there was no explanation as to why it was Ms Asmar who asked to call the meeting to deal with Mr McGuinness and Mr Collins, especially where the Union rules provide that Ms Barclay, as the Branch President, has the power to do so: see r 45(a) of the rules of the Union. 43 Second, again like the stand down of Mr McGuinness, the process in calling an emergency meeting on 30 October 2024 (when the first alleged incident occurred on 17 September 2024) appears to be an irregular process, without notice to at least Mr Eden. There was no explanation as to why the matter of Mr Collins could not have been done on notice and with more specificity as to the allegations and the person or persons making them. 44 Third, the evidence that Mr Sakaci said to Mr Collins that Ms Asmar was taking steps to get rid of Mr Collins and Mr McGuinness. I note that Mr Sakaci denies saying this to Mr Collins, but I weigh that with the considerations set out here. 45 Fourth, the fifth affidavit of Mr Borenstein states (at [6]) that Mr McGuinness told him that Ms Asmar gave a speech at the Branch's delegate's conference held on 23 October 2024 and said that "the biggest enemy were traitors within the union, who haven't seen what is coming yet, but who will get what is coming, and who will regret betraying her." As I say above, Mr Atkinson, in his second affidavit (at [26]) denied that Ms Asmar said words to the effect of "they will get what is coming to them; and they have not seen what is coming but they will get it". However, Mr Atkinson did not deny that Ms Asmar had said: "the biggest enemy were traitors within the union." It appears that Mr Collins fell into this category because he had: (a) said to Ms Asmar that she should stand down pending the FWC investigation; and (b) had accompanied Ms Barclay when she attended the FWC as part of its investigation into the Branch and Ms Asmar. 46 Fifth, I assess the stand down of Mr Collins together with the conduct raised by Mr Eden (and set out in Heath Services Union v Asmar at [51] - [56]) and the stand down of Mr McGuinness. 47 Viewing all that conduct together (including my conclusions above about the stand down of Mr McGuinness) I am satisfied that, for the purposes of a serious question, the stand down of Mr Collins strengthens the allegation that the Branch has ceased to function effectively and there are no effective means under the rules of the Union to enable it to function effectively. I am also satisfied, for the purposes of a serious question, that Ms Asmar played a role in the stand down of Mr Collins as reprisal conduct, and that is to be weighed with Ms Asmar's other conduct and the balance of convenience considerations.

THE LACK OF COOPERATION WITH, AND THE FAILURE TO PROVIDE INFORMATION TO, THE NATIONAL OFFICE 48 Ms Asmar's undertakings relevantly required her to: (a) provide the National Secretary of the Union a copy of any report provided to the BCOM by Connect National Audit within 24 hours of receipt: see undertaking (f)(ii). (b) provide the National Secretary of the Union a copy of any report provided to BCOM by the Branch Secretary or Assistant Branch Secretary, in accordance with Direction 2 of the resolution on 3 September 2024 entitled "Resolution - Interim Measures" within 24 hours of receipt; (f)(i). 49 The purpose of these undertakings given in the earlier interlocutory hearing was to ensure the protection of the status quo and the protection of the assets of the union. In Health Services Union v Asmar, I stated (at [92]) that I was "conscious to preserve the position of the Branch and the Union pending the hearing..." The Union submits that Ms Asmar has not complied with both of those undertakings.

The Connect National Audit report 50 The Union contends that the report prepared by Connect National Audit (the CNA report), which was provided to three members of the BCOM on 1 November 2024, was not provided to the National Secretary, Mr Williams, until 15 November 2024 in breach of the undertaking above. 51 Ms Asmar submitted that she had put in place a process by which Ms Petkoski was to provide the report. However, the evidence of Ms Petkoski is that whilst she endeavoured to confirm whether Mr Williams had received the report, she did not receive a direction from Ms Asmar to provide the report until 7:00pm on 15 November 2024 "as Mr Williams was threatening court action as he hadn't received this email with the report." 52 Whilst Ms Asmar accepts that it was not provided until 15 November 2024, she said in her written submission that the issue was "for final trial". In oral submissions Counsel for Ms Asmar submitted that Ms Asmar "had put in place a situation or an arrangement" to comply with the undertaking and was "let down". 53 The evidence makes clear that Ms Asmar had the CNA report on 1 November 2024. There does not appear to have been any restriction on Ms Asmar immediately forwarding the report to Mr Williams at the National Office of the Union. Her failure to do so immediately demonstrates, at minimum, a lack of sufficient regard to her obligations contained in the undertakings. At worst it demonstrates a deliberate and dilatory failure to comply with those undertakings. For the purposes of the interlocutory application, I do not assume the worst. However, given the apparent ease with which Ms Asmar could have ensured that Mr Williams had received the CNA report I do conclude that her conduct demonstrates a lack of sufficient regard for her obligations contained in the undertakings.

The BCOM activity reports 54 The undertaking at (f)(i) (see above at [13] and [48(b)]) incorporated the resolution of the BCOM put in place to provide "additional financial governance measures for the Branch". 55 By adopting that resolution, the undertaking at (f)(i) sought to ensure that all payments, transfers and decisions of the BCOM were properly recorded and provided to the National Office of the Union. Again, this was to ensure the protection of the status quo and the assets of the Union. 56 More specifically the undertaking required Ms Asmar to At each BCOM meeting subsequent to this direction being issued, the Branch Secretary or Assistant Secretary, as appropriate, will provide or cause to be provided to the BCOM a report listing in table form:

all payments or transfers of Branch funds or property approved by the Branch Secretary or Assistant Secretary in the preceding month, for which supporting documentation will be made available to the BCOM on request;
all payments, transfers and decisions within (a) of Direction 1 that the Financial Administrator and BCOM members given notice did not object to;
all financial management decisions made by the Branch Secretary or Assistant Secretary in the preceding month, including but not limited to procurement and staffing decisions, and any decision in relation to matters to which the Branch's and financial policies and procedures apply. The Branch Secretary or the Assistant Secretary will provide any further information about her activities requested by the BCOM. 57 Again, Ms Asmar said in her written submissions that the issue was "for final trial". In oral submissions Ms Asmar explained the failure by submitting that no such reports were prepared and therefore there was no failure to provide the reports in accordance with the undertaking. 58 I do not accept that the issue is only a matter for trial. The matter has the potential to demonstrate a lack of sufficient regard by Ms Asmar for her obligations contained in the undertakings and the need for further interlocutory orders. 59 More significantly, Ms Asmar's submission that there was no breach of the undertaking because there were no reports prepared causes me concern about the proper functioning of the Branch and her diligence in assuring its expenditure is properly recorded and reported. The measure is one agreed to by the BCOM to ensure that Branch transfers are properly recorded and reported, and that the Secretary's financial management decisions are properly recorded and reported. It was not submitted that there were no such transfers or decisions, rather that there was no report. There was no explanation as to why those reports were not prepared by Ms Asmar. 60 I find a serious question that there was a failure by Ms Asmar to provide the CNA report to the National Secretary, and a failure to provide or prepare the BCOM reports. Those matters strengthen the serious question under s 323 of the Act. They also must be weighed in the assessment of whether interlocutory orders should be made directed at Ms Asmar.

THE LACK OF COOPERATION WITH, AND THE FAILURE TO PROVIDE INFORMATION TO, MR EDEN 61 Ms Asmar's undertaking at (e)(iii) (set out above at [13]) required her to provide to Mr Eden all relevant agendas, minutes, draft resolutions and any other document to be placed before or considered at the BCOM meeting. 62 The Union complains that at least: (a) Mr Eden was not provided with any agenda for the BCOM meeting of 30 October 2024 and did not receive the agenda for the BCOM meeting of 11 November 2024 until 5:30pm the night before the meeting; and (b) Mr Eden was not provided with the draft resolutions put to the 11 November 2024 BCOM meeting, in circumstances where it appears clear that at least one of those resolutions was prepared before the meeting. 63 As to the agenda (referred to in (a) above) Ms Asmar contends that Mr Eden received that agenda at about the time when it was received by others. For the purposes of this interlocutory application, I accept that submission. As to the draft resolutions (referred to in (b) above) it appears from the document prepared by Mr Atkinson (and provided by Ms Asmar's solicitors to the Union's solicitors) that at least the resolution concerning Mr Collins' stand down was prepared in advance of the meeting. Ms Asmar relied upon the affidavit of Mr Atkinson where he stated that it was BCOM's longstanding practice that agenda items describe topics and do not include proposed resolutions. That statement ignores Ms Asmar's undertaking to provide to Mr Eden "agendas, minutes, draft resolutions and any other document to be placed before or considered at the BCOM meeting" (emphasis added). That undertaking was designed to ensure the efficient operation of the Branch and to ensure that Mr Eden was not taken by surprise by the contents of agendas, minutes, resolutions or other documents. The resolution covered the significant matter of Mr Collins' stand down. I have found above that Ms Asmar played some role in the standdown. 64 There was no evidence on behalf of Ms Asmar about her efforts to provide Mr Eden with the draft resolution or the circumstances of its creation. There was no evidence from Ms Asmar about her future desire or intention to cooperate with Mr Eden. 65 I find a serious question that there was a failure to provide the draft resolution to Mr Eden. The failure to provide that resolution strengthens the serious question about the Branch ceasing to function effectively.

THE REDUNDANCY OF THE FIVE BRANCH CALL CENTRE EMPLOYEES 66 On 11 November 2024 the BCOM voted to make redundant an unstated number of Branch employees. The motion provided: "Due to operation requirements and the increasing amount of legal costs associated with the actions currently underway, the organisational restructure is to be implemented immediately in the best interests of the Union and its members" (the redundancy resolution). 67 The Union says that decision was in breach of undertaking (h) (set out above at [13]) which provided that the second, fourth, seventh and ninth to fifteenth respondents (all members of BCOM) shall not dismiss any employee of the Branch unless they give 14 days' written notice to the employee and to the National Secretary. It is clear that that notice was not given. 68 The Union also says that the decision to make the employees redundant was in breach of Ms Asmar's undertaking (d)(ii)b. (set out at [13] above) not to "take any disciplinary action (including dismissal) against any employee of the … Branch." 69 There is some relevant background to the redundancy resolution: (a) In September 2024, Ms Asmar met with Ms El Sheikh, the Branch's Member Assist Team Leader (or Call Centre Manager) who reports to Ms Asmar, together with Mr Katsis, Ms Salem and Mr Atkinson. That meeting discussed cost savings in each attendee's area of responsibility. Ms El Sheikh said to that meeting that she was concerned that call centre employees did not have enough to do and that she would be comfortable restructuring the call centre. (b) On 30 October 2024, Ms Asmar met with Ms Petkoski, Branch Compliance Officer, together with Mr Katsis, Mr Ioannidis and Ms El Sheikh. At that meeting Mr Asmar requested Ms Petkoski "calculate wages for the five call centre staff members as well as identify other potential areas for cost reduction." Ms Petkoski says she suggested cuts by reviewing the travel insurance expenses and reconsidering the need for the second bookkeeper. (c) On 8 November 2024, Ms Petkoski forwarded an email to Ms Asmar setting out the wages bill of five call centre employees for the period 1 January 2024 to 1 November 2024. (d) Prior to the redundancy motion being put to the BCOM on 11 November 2024 Ms Asmar "declared a conflict of interest" and Ms Petkoski delivered a report. (e) Ms Petkoski's report heading "staffing review" identified: (i) Reduction in call centre staff; (ii) Reduction by 2 in metro organising team [currently 9 based on 0.5[4] and 1.0[5]]; (iii) Reduction by 1 in bookkeeping team [currently 2]; (iv) Increase by 2 in regional organising team [currently 3]; (v) Creation of an organiser support/recruitment position [new role]; (vi) Aged care organiser to be activated [currently reception]; and (vii) Reception/office/membership assist hybrid role. (f) The only employees made redundant as the result of that "staffing review" and the redundancy resolution were: Declan Redden, Scarlett Knight, Yeshua Veloso, Atticus Anderson Prior, and Lani Dumas. These five individuals were all call centre employees. 70 Further, the Union's evidence was that the five employees made redundant were each recruited by Mr McGuinness and were accordingly associated with Mr McGuinness. 71 There was little evidence before the court about the individual circumstances of the five employees. In the fifth affidavit of Mr Borenstein it states that all five worked in the call centre except for Mr Veloso who also performed some organising work. Mr Dumas was employed 9 days per fortnight, Mr Veloso was full-time, Ms Knight and Mr Redden were employed 3 days per week, and Mr Prior was employed 2 days per week. I was told by Counsel for Mr Eden that he had prepared applications for each of the five employees alleging that they were unfairly dismissed, and that those applications were to be lodged with the FWC on the day of the hearing, 2 December 2024. Counsel indicated that the five employees were seeking reinstatement and compensation in those applications. However, those applications are not before the Court. 72 There is little doubt that the relevant respondents did not comply with undertaking (h) and provide the five employees with 14 days' notice. Ms Asmar described the failure as one that is "technical in nature" and has not "caused any significant prejudice" to the employees. Ms Asmar relied on the evidence of Mr Atkinson who said that he did not understand his undertaking (not to dismiss any Branch employee without notice to them and the National Secretary) as applying to redundancies. It appears that he did not seek any advice about that question. The failure to provide the five employees with notice is at least a demonstration of a lack of careful regard to the obligations created by the undertakings. The notice requirement, evidently enough, was to provide notice so that steps could be taken to query (or even prevent) the dismissal. That opportunity was lost. 73 The evidence does establish, for the purposes of a serious question, that Ms Asmar was involved in the decision to make the five employees redundant. Ms Asmar was present at the meetings with Ms El Sheikh and Ms Petkoski in September and October 2024 (see [69] above). Ms Asmar was present at the meeting of the Finance Committee when the redundancy proposal was debated. 74 The Union contends that the merits of the redundancies are "suspect". It says so for reasons including: (1) there was no explanation as to why (save the bookkeeper) the only persons made redundant as a result of the staff review were the five employees; (2) the redundancies were first considered in September but not raised with the Court during the earlier interlocutory application; (3) the lack of any significant costs savings from the redundancies; (4) the connection between the redundant employees and Mr McGuinness; and (5) the lack of power of the BCOM to make such a decision. 75 On the evidence presently before the court I am not prepared to find a serious question that the redundancies were "suspect" or reprisal conduct. I place particular weight on the evidence of Ms El Sheikh that she formed and expressed in the view, in September 2024, that the call centre employees did not have enough to do and that she would be comfortable restructuring the call centre. However, I anticipate that the matter will be the subject of further evidence at the hearing. 76 I do weigh the failure to provide the employees (and the National Secretary) with the requisite notice as a matter that strengthens the serious question to be tried. However, I do not find a serious question that Ms Asmar breached her undertaking where she undertook not to "take any disciplinary action (including dismissal) against any employee of the … Branch." I approach that undertaking as an undertaking of Ms Asmar not to dismiss an employee arising out of disciplinary action, rather than an undertaking not to dismiss an employee in any circumstances.

CONCLUSIONS ON SERIOUS QUESTION UNDER SECTION 323 77 I accept, as submitted by the Union, that it is not necessary for me to determine whether the undertakings given in the earlier interlocutory application have been breached. Rather I am concerned to preserve the position of the Branch and the Union pending the hearing of the Union's originating application for a declaration and scheme of administration under s 323 of the Act. 78 I am concerned that the orders and undertakings made on 7 October 2024 have not adequately protected the position of the Branch and the Union. In particular, as I explained in Health Services Union v Asmar, undertakings (c), (d) and (h) were to meet the concerns of the Union that no employee employed in the Branch is exposed to reprisal conduct: see Health Services Union v Asmar at [28], [29] and [31]. 79 I am satisfied that the conduct the subject of this interlocutory application (the five matters set out above) demonstrates that the dysfunction of the branch has worsened. Put another way, the serious question as to ceasing to function effectively is stronger. 80 As the parties accept, when considering the grant of an interlocutory injunction, the issues of serious question and balance of convenience are related inquiries: Samsung at [67] (Dowsett, Foster and Yates JJ), citing, with approval, Sigma at [15] (Sunberg J). An apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even: Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 Woodward J (with whom Smithers and Sweeney JJ agreed) at p 472. 81 Subject to the matters of balance of convenience addressed below, I am satisfied that there is a need to further enjoin the respondents so as to preserve the position of the Branch and the Union pending the hearing of the originating application.

The relief against Ms Asmar - balance of convenience 82 The Union seeks an order that Ms Asmar be restrained from carrying out any of the duties of the office of Branch Secretary. It otherwise proposes that Ms Asmar remain in office and continue to receive the entitlements of that office. 83 The Union contends that the balance favours the making of that order at least because of: (a) Ms Asmar's threat made at a meeting at Ms Asmar's home on 7 April 2024 that Mr Eden would be pushed out; (b) Ms Asmar's statement that the BCOM had given her authority to "do what the fuck I want"; (c) Ms Asmar's declaration made at the Branch's delegates' conference that "the biggest enemy were traitors within the union"; (d) The manner in which Ms Asmar has conducted herself in respect of the above five matters that occurred since the undertakings and orders make 7 October 2024; (e) As a consequence of the above, the "material risk" that further orders will be necessary prior to the trial. 84 Ms Asmar submits that the orders should not be made because: (a) The orders directed at reinstating the redundant employees and cancelling the stand downs would address the issues raised; and (b) Ms Asmar would suffer irreparable prejudice by not being able to carry out her elected office; (c) The order would result in Mr Eden acting in the position of Branch Secretary and this would not be appropriate because Ms Asmar says (through the evidence of Mr Atkinson) that Mr Eden is not appropriate. 85 I am satisfied that the balance of convenience favours the making of the order sought by the Union for the following reasons. 86 First, I am satisfied that there is a serious question that Ms Asmar did make the threat made at the meeting at Ms Asmar's home on 7 April 2024 that Mr Eden would be pushed out. That evidence was set out at [54] of the second affidavit of Mr Borenstein. No evidence refuting or denying that threat was provided by Ms Asmar. 87 Second, I am satisfied that there is a serious question that Ms Asmar did make the statement that the BCOM had given her authority to "do what the fuck I want". That evidence was set out at [56] of the second affidavit of Mr Borenstein. No evidence refuting or denying that statement was provided by Ms Asmar. 88 Third, I am satisfied that there is a serious question that Ms Asmar did make the declaration that "the biggest enemy were traitors within the union". That evidence was set out at [6] of the fifth affidavit of Mr Borenstein. No evidence refuting or denying that statement was provided by Ms Asmar. 89 Fourth, for the reasons set out above I am satisfied that there is a serious question that Ms Asmar played a part in the complaint against Mr McGuinness and that there is a serious question that that complaint was reprisal conduct. That matter, and those at one to three above give rise to the risk of some further reprisal conduct. 90 Fifth, for the reasons set out above I am satisfied that there is a serious question that Ms Asmar played a part in the complaint against Mr Collins and that there is a serious question that that complaint was reprisal conduct. That matter, and those at one to four above give rise to the risk of some further reprisal conduct. 91 Sixth, I am satisfied that the failure to provide the CNA report to the Union's National Secretary demonstrates at least a lack of sufficient regard for Ms Asmar's obligations contained in the undertakings. 92 Seventh, I am satisfied that the failure to provide the BCOM activity reports demonstrates a lack of sufficient regard to Ms Asmar's obligations contained in the undertakings. Alternatively, if there were no reports prepared, it demonstrates some doubt about Ms Asmar's performance of her duties and her diligence in assuring Branch expenditure is properly recorded and reported. 93 Eighth, I am concerned that the failure to ensure that the draft resolution was provided to Mr Eden in accordance with the undertaking reflects a lack of proper regard for the obligations and importance of the undertakings. 94 Ninth, in respect of those alleged failings to comply with the undertakings, particularly those (at seven and eight above) involving cooperation with the National Secretary or the Union and with the Branch Assistant Secretary, there was no evidence from Ms Asmar about her future intention to ensure compliance with those obligations and cooperate with those persons. 95 Lastly, I am concerned that the undertakings and orders made on 7 October 2024 were designed to ensure the status quo and effective functioning of the Branch pending the hearing and determination of the Union's originating application. The Union complains that the five events that occurred after those orders and undertakings demonstrate that further orders are necessary and that failing further orders that it will need to return again to the Court prior to the hearing listed for 28 April 2024. In balancing all of the matters I weigh in that balance the desire to avoid the Court performing a supervisory role pending the trial. French J in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1991) 161 ALR 79 at [26], and more recently relied upon by O'Bryan J in Alumina and Bauxite Company Ltd v Queensland Alumina Ltd [2024] FCA 43 at [425], stated: "undertakings or orders which are likely to require the court to be concerned with the ongoing supervision of the conduct of the parties to them will also raise serious questions as to their appropriateness." 96 I weigh the important consideration of Ms Asmar not being able to carry out the duties of her elected office for the period between now and the determination of the hearing commencing on 28 April 2025. Of course, implicit in the submissions made by Ms Asmar about the need to stand down Mr McGuinness and Mr Collins where serious allegations are made, is the recognition that it will sometimes be appropriate to investigate and stand down where serious allegations exist. Both Ms Asmar, and the BCOM, have so far determined that is not the case for Ms Asmar. 97 The rules of the Union provide that the Branch Assistant Secretary will act in the Secretary's stead when appointed to do so by the BCOM: r 49(b). Those rules further provide that when the Branch Assistant Secretary is not available to be appointed to act as the Branch Secretary the BCOM may appoint another Branch officer to act in the stead of the Branch Secretary: r 49(c). I am satisfied that those rules would enable the Branch to function, pending the hearing and determination of the originating application, in absence of Ms Asmar. 98 I also weigh the evidence of Mr Atkinson that Mr Eden, the Branch Assistant Secretary, is not capable of performing the duties of Branch Secretary due to symptoms of his past illness and other allegations. But against that I weigh the evidence of Mr Eden himself that since his treatment for cancer, he does not suffer from those symptoms. Mr Eden's evidence is that he is willing and able to assume the role of Branch Secretary. 99 In all those circumstances, together with the conclusions above about the strengthening of the serious question to be tried, I consider that it is appropriate to make the interlocutory order restraining Ms Asmar from carrying out any of the duties of the office of Branch Secretary until the hearing and determination of the originating application.

The relief with respect to Mr McGuinness - balance of convenience 100 As set out above the Union seeks an order cancelling the stand down of Mr McGuinness. 101 The Union says the balance favours that order because the order will restore the status quo "which was supposed to hold from 7 October 2024". Further, Mr Eden submits, and has given evidence, that Mr McGuinness is an important contributor to the union's campaign to recruit members and organise and prepare a new enterprise agreement for Australian Clinical Labs (ACL Campaign). Mr Eden gave evidence that Mr McGuinness, with Mr Collins, were "critical resources and support" to Mr Eden with this campaign. 102 Ms Asmar submits that the investigation into Mr McGuinness should run its course and that the cancelling of the stand down would be "conducive to further disputation and disharmony." 103 In circumstances where there is no specificity as to the allegations against Mr McGuinness it is not clear what form that disputation and disharmony would take. Further, as explained above, there is no detail as to who made the complaint against Mr McGuinness so as to support the submission that disharmony would be created with that complainant. There was no evidence that Mr McGuinness' continuation in the workplace up to 11 November 2024 (the date of the stand down motion) caused disputation and disharmony. There is no evidence about any impending disharmony or disputation caused by Mr McGuinness' presence in the workplace. 104 I am satisfied that the balance of convenience favours the making of an order staying the stand down and investigation of Mr McGuinness for the following reasons. 105 First, my conclusions about the legitimacy of the stand down and investigation of Mr McGuinness (at [25] to [33] above) and strengthening of the serious question. 106 Second, the need to restore and maintain the status quo pending the hearing and determination of the originating application. 107 Third, the evidence of Mr Eden about the critical role of Mr McGuinness in the ACL Campaign. Mr Eden says that Mr McGuinness was responsible for union communications as part of the campaign and that Mr McGuinness, with Mr Collins, assists Mr Eden on the campaign by visiting sites to recruit members. 108 In all those circumstances I consider that it is appropriate to make an interlocutory order staying the stand down and investigation of Mr McGuinness. I note that the Union sought an order to 'cancel' the stand down of Mr McGuinness. That order would effectively amount to final relief. It is more appropriate to stay the process, allowing Mr McGuinness to return to work, and otherwise make any necessary final orders after the hearing and determination of the Union's originating application.

The relief with respect to Mr Collins - balance of convenience 109 As set out above the Union seeks an order cancelling the stand down of Mr Collins. 110 The Union says the balance favours that order because the order will restore the status quo "which was supposed to hold from 7 October 2024". Further, Mr Eden submits, and has given evidence, that Mr Collins is an important contributor to the ACL Campaign. Mr Eden gave evidence that Mr Collins, with Mr McGuinness, were "critical resources and support" to Mr Eden with this campaign. 111 Ms Asmar submits that the investigation into Mr Collins should run its course and that the cancelling of the stand down would be "conducive to further disputation and disharmony." 112 The allegations against Mr Collins are set out at [40] above. Those allegations concern alleged incidents on 17 September 2024, 9 October 2024 and 23 October 2024. Whilst I do not downplay the allegations themselves, there was no evidence that Mr Collins' continuation in the workplace between 17 September 2024 and 11 November 2024 caused disputation and disharmony. There was no evidence about how Mr Collins presence in the workplace in the future would cause disputation or disharmony. 113 I am satisfied that the balance of convenience favours the making of an order staying the stand down and investigation of Mr Collins for the following reasons. 114 First, my conclusions about the legitimacy of the stand down and investigation of Mr Collins (at [42] to [46] above) and strengthening of the serious question. 115 Second, the need to restore and maintain the status pending the hearing and determination of the originating application. 116 Third, the evidence of Mr Eden about the significant role of Mr Collins in the ACL campaign. Mr Eden says that Mr Collins has been an organiser for approximately ten years and, with Mr McGuinness, provides significant support to Mr Eden by visiting sites to meet with members and to recruit. 117 In all those circumstances I consider that it is appropriate to make an interlocutory order staying the stand down and investigation of Mr Collins. I note that the Union sought an order to 'cancel' the stand down of Mr Collins. As I said in respect of Mr McGuinness, that order would effectively amount to final relief. Again, it is more appropriate to stay the process, allowing Mr Collins to return to work, and otherwise make any necessary final orders after the hearing and determination of the Union's originating application.

The relief with respect to the five call-centre employees - balance of convenience 118 The Union contends that the balance favours the granting of the relief directed at the five call-centre employees because it is necessary to restore the status quo from 7 October 2024. 119 Ms Asmar says that the balance favours declining this relief because it would result in the Branch being forced to maintain the employment of the five employees that are surplus to its requirements and impose an inefficiency on the Branch that it has resolved to rectify. 120 As set out above I am satisfied that there is a serious question that the relevant respondents did not comply with their undertaking to provide the requisite notice to the employees and to the National Executive. 121 Whilst I am endeavouring to maintain the status quo pending the hearing of the Union's originating application I am not satisfied that it is appropriate to reinstate the five call centre employees. I reach that conclusion for the following reasons. 122 First, I have no evidence from the affected employees about their circumstances. I have no evidence about whether they want immediate reinstatement (accepting of course that they could decline it) and whether their personal and financial circumstances support such an interlocutory order. 123 Second, whilst I have expressed some concerns about the process and decision in making the employees redundant, I weigh the evidence of Ms El Sheikh that the engagement of the additional call centre employees was "a failure" that "created inefficiency" and that it was in the best interests of the Branch to restructure the call centre. I also weigh her evidence that "a lot of the time the employees in the call centre did not have anything to do." 124 Third, on the figures presented to the BCOM there is some cost saving by the redundancies. The costs savings are estimated at $215,000 and the cost of hiring two new organisers is $120,000 inclusive of superannuation. Therefore, there appears to be a cost saving of $95,000. I weigh that as a consideration in the balance of convenience. 125 Fourth, the five employees still have the ability to seek relief, including reinstatement, against the Union. As discussed above, I am told they have commenced proceedings alleging that their dismissals were unfair contrary to the Fair Work Act 2009 (Cth). 126 In the circumstances I decline to make the order directed at the reinstatement of the five call-centre employees.

The relief with respect to other employees of the Branch - balance of convenience 127 The Union also seeks an order in the following terms: An order that, pending the final hearing and determination of this proceeding, the respondents be restrained from taking (directly or indirectly, including by or through another respondent) the following action against those of the Applicant's employees performing work in its Victorian No. 1 Branch, without the prior written consent of the Applicant's National Executive: dismissals, disciplinary action of any kind (including but not limited to suspensions from duty on pay, directions about the place where work is to be performed or action that threatens the security of employment), changing duties, or changing the way work is customarily performed by any employee. 128 The Union submits that this order is necessary to prevent further reprisals against staff, by any of the respondents. They say that in part as the result of Mr Atkinson's evidence that the BCOM, and not Ms Asmar, determined to terminate the five employees; and that he did not understand a redundancy to amount to a dismissal. 129 Ms Asmar says that such an order would unjustifiably confer powers on the National Executive that are expressly reserved for the Branch. 130 The existing undertaking of the second, fourth, seventh and ninth to fifteenth respondents is set out at [13] above. That undertaking did not require the written consent of the National Executive, rather it required 14 days' written notice to the employee and to the National Secretary. I have found a serious question that the relevant respondents did not comply with that undertaking. 131 I am satisfied, in all the circumstances set out above, that is it appropriate to broaden the restriction directed at dismissal to include a restriction on dismissal, disciplinary action, change of duties and changes to the way work is performed. I am satisfied that it is otherwise appropriate to maintain the notice requirement that formed part of the undertaking rather than impose a requirement for prior written consent by the National Executive. Such a requirement would be a significant restriction on the Branch. However, the obligation for notice still provides some protection to the employees and a level of oversight by the National Secretary of the Union.

EXPEDITION 132 The Union's interlocutory application originally sought expedition. It sought hearing dates in February 2025. At the hearing the Union submitted that it would not be ready to proceed in February and it then sought hearing dates in March. I explained to the parties that March is largely reserved for Full Court hearings and that the trial dates allocated (eight days from 28 April) had already involved some reallocation of the Court's workload and some expedition. In those circumstances the Union did not press its application for expedition. However, at the hearing Ms Asmar sought expedition (although she had not done so in her written submissions). In all the circumstances, including the Court having now twice put in place interlocutory orders and the very limited ability of the Court to accommodate an earlier hearing, the most appropriate course is that the matter be heard on the existing dates commencing 28 April 2025.

DISPOSITION 133 In all those circumstances I find that it is appropriate to make orders: restraining Ms Asmar from continuing to carry out her duties as Branch Secretary; staying the stand down and investigation of Mr McGuinness; staying the stand down and investigation of Mr Collins; and restricting the ability of the respondents to dismiss, discipline or change the duties and work practices of Branch employees. The Union's originating application is otherwise the subject of timetabling orders made 18 October 2024 and will be heard from 28 April 2025. I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling.

Associate: Dated: 13 December 2024 SCHEDULE OF PARTIES VID 917 of 2024 Respondents Fourth Respondent: LEE ATKINSON Fifth Respondent: SHERIDA JACKS Sixth Respondent: ANDREW HARGREAVES Seventh Respondent: SUSAN STONE Eighth Respondent: DANNY HARIKA Ninth Respondent: NICK KATSIS Tenth Respondent: ALEKSANDROS IOANIDIS Eleventh Respondent: LISA FISHER Twelfth Respondent: KOULA VASILIADIS Thirteenth Respondent: TOULA LEGGASICK Fourteenth Respondent: DIANNE STRATTON Fifteenth Respondent: DIOSIE MCCALLUM

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (7)