Prima facie case
47 The applicants submit:
52. In support of the application for interlocutry relief the Applicants rely on the following claims:
(a) that Wesbeam has contravened the protection contained in sections 340 and 346 of the FW Act by dismissing Trego for a prohibited reason or for reasons that included a prohibited reason; and
(b) that by dismissing Trego the First Respondent has engaged in conduct in contravention of sections 343 and 348 with the intent to coerce the employees to cease exercising their workplace rights in relation to enterprise bargaining, to cease being members of the union and to cease otherwise engaging in industrial activity.
53. The Applicants submit that the prohibited reasons for the dismissal were:
(a) that Trego had exercised his right to make complaints or inquiries within the meaning of s.341(1)(c) by complaining that he had not been formally appointed to the position of leading hand and by raising safety concerns;
(b) that Trego has exercised his right to participate in a process or proceeding under a workplace law within the meaning of s.341(1)(b) by appointing the union as his bargaining representative, seeking to participate in negotiations for an enterprise agreement and becoming and acting in his capacity as a HSR;
(c) that Trego had engaged in industrial activity within the meaning of s.347(a) by becoming a member of the union and becoming a delegate of the union; and
(d) that Trego had engaged in industrial activity within the meaning of s.347(b) by acting as the union's representative in the factory.
…
58. In summary the Applicants contend that there is a compelling inference to be drawn that Trego:
(a) has been dismissed for prohibited reasons in contravention of sections 343 and 346 of the FW Act; and
(b) by dismissing Trego the First Respondent has engaged in conduct in contravention of sections 343 and 348 with the intent to coerce the employees to cease exercising their workplace rights in relation to enterprise bargaining, to cease being members of the union and to cease otherwise engaging in industrial activity.
48 For the purposes of the interlocutory application, I accept the applicants have established a prima facie case on those contentions.
49 I emphasise these opinions are formed at a prima facie level, without the evidence having been tested, and with the evidence being no doubt substantially less than the parties would adduce at trial. However, it is necessary to explain why I consider the prima facie case is strong, because that is a factor which has affected my willingness to grant some of the relief sought by the applicants, in circumstances where reinstatement in particular is a remedy that has been approached by Courts cautiously in the past. The following aspects of the evidence have informed my conclusion there is a strong prima facie case as described by the applicants.
50 Mr Flanagan's evidence indicates the kinds of changes the union, with Mr Trego, sought to bring into the Wesbeam workplace through the proposed enterprise agreement:
Krouzecky showed me the Wesbeam [enterprise] agreement from their Queensland site. I told her we wouldn't agree to an agreement in those terms. I told her that in the Queensland agreement, the heat policy only applied in conditions of 47 degrees or over and that the wage increases were only 1.5% for three years. In told her wanted to bargain for better and fairer conditions for the members than that and so did Trego.
51 There is nothing objectively unreasonable abut a union bargaining for these kinds of terms. I see nothing in the evidence to suggest that Mr Trego, in his role as a union delegate, nor Mr Flanagan in his role as the CFMMEU official liaising with Wesbeam, the union members on site and Mr Trego, acted in any way that could not be reasonably expected of a union delegate and a union official. I accept there is some evidence suggesting Mr Flanagan was rude and confrontational, and that may be proven to be the case at trial. However, the substance of the union's engagement on the site, and Mr Trego's role in that, seems on the evidence to be nothing out of the ordinary of what would be expected of a union in such circumstances.
52 Despite this, Mr Blick's own affidavit evidence discloses a dislike for, and hostility towards, the union and the bargaining power it brought to Wesbeam workers. The changes in the first applicant's attitude to his work which Mr Blick describes are in my opinion suggestive of disapproval of Mr Trego's focus on union protections, and the support unions might give to workers. Mr Blick deposes to personally not being in favour of an enterprise agreement for this workplace, saying the "logistics, time and expense" involved in the bargaining process are not justified in a small workplace like Wesbeam's Dandenong factory. The negativity towards what unions, including the second applicant, represent, and what they do - in ways which may of course be inconvenient or expensive for employers - come through strongly in Mr Blick's affidavit. The impression I have formed on the present evidence is strengthened by evidence from Mr Blick, in two respects. First, his own evidence that "I have noticed the morale, particularly amongst the supervisors who report to me, is so much more at ease". And second, his evidence, by reference to a conversation he had with Mr Rako, that now Mr Trego and his insistence on union involvement is not at the workplace, "morale has picked up and the attitude of the guys is more positive". One inference is that "morale" and "positive" and "at ease" in this context mean no opposition to the way the employer insists the workplace runs and the conditions its employees should experience. While it may be that the attitude of the CFMMEU, and Mr Flanagan, contributed to an increase in tension and confrontation which was unnecessary, for the purposes of the present application, the clear impression I have of Mr Blick's evidence is a sustained and wholesale objection to a union being involved in a workplace he managed.
53 In that context, the evidence before the Court reveals a distinct coincidence between the commencement of Mr Trego's union involvement (and the consequent union presence within the Wesbeam factory), and the events which ultimately led to Mr Trego's dismissal on 13 June, and the dismissal itself. That coincidence appears, on the current evidence, too acute to be accidental. One example is the competing evidence about why Mr Trego lost his overtime from late April 2019. His evidence - not contradicted - was that prior to this time, he worked a considerable amount of overtime, and it was always on offer. Almost immediately after he joined the union and became its delegate on the site, Mr Trego was no longer offered regular overtime. Mr Blick deposes that due to "some slowing down in terms of production" at or around 20 April 2019, all employees' overtime hours were reduced. There is no evidence about when that situation started (in terms of precise dates), for how long it lasted, or when or whether it continues to be the case that all of Mr Trego's former co-workers are working reduced overtime hours. In my opinion, a broader, industry-related "slow down" does not explain the suddenness of the cessation of overtime as recounted by Mr Trego, which was not disputed by the respondents.
54 The circumstances of Mr Trego's performance reviews and his eventual dismissal were also probative, at a prima facie level, of the real reasons for his treatment, including his dismissal, being his "industrial activity". Further, the constant theme in the respondents' affidavit material that Mr Trego failed to follow a "chain of command" within Wesbeam is capable of demonstrating that Wesbeam simply wished to keep the union out of its workplace, and prevent any circumstances arising where the union might be able to address health and safety concerns at the workplace, or bargain for better employment and workplace conditions.
55 Overall, the impression I have gained from the respondents' present affidavits is that there was a hasty and somewhat peremptory performance management process, which appeared to have as its main aim that Mr Trego cease involving the union in workplace issues, including health and safety issues. I note in respect of the latter Mr Flanagan's evidence that Mr Trego was elected as the union's workplace Health and Safety Representative on 6 May 2019. Rather than any good faith approach to constructively resolving how Mr Trego might address his employer's concerns about him contacting the union first, the present evidence suggests there was a decision to get rid of the problem by dismissing Mr Trego and thus removing the union's influence on the worksite.
56 The respondents relied on the situation they submitted existed concerning Ms Duggan's concerns about Mr Trego. There is no evidence from Ms Duggan herself, although an email from her, and a handwritten note, are exhibited to Ms Krouzecky's affidavit. In other evidence, including evidence about what was put to Mr Trego as part of the dismissal process, it is suggested there was CCTV footage to back up Wesbeam's assertions about how Mr Trego had behaved towards Ms Duggan. This behaviour was given as a reason for Mr Trego's dismissal, namely that Mr Trego had engaged in "[m]isconduct causing serious and imminent risk to the health and safety of employees". Counsel for the respondent confirmed in oral submissions this was a reference to allegations about how Mr Trego had behaved towards Ms Duggan herself (not Mr Blick). Yet the CCTV footage, which might have been the most objectively persuasive evidence, was not produced by the respondents. In any event, even if one takes the descriptions in Ms Duggan's email and note, which is the highest the evidence reaches for the respondents, the description in the dismissal letter seems very difficult to justify, and therefore very difficult to accept, at this stage of assessing the strength of the prima facie case, as a reflection of the true reason for Mr Trego's dismissal.
57 I note also, in the context of another of the express reasons for Mr Trego's summary dismissal (being that he discussed his performance review with another employee, namely Ms Duggan), Wesbeam appears to have no difficulty relying on what its other employees (such as Ms Duggan) discuss amongst themselves, or what Mr Trego may have discussed with those employees, when Wesbeam wishes to rely upon those discussions. The asserted confidentiality seems entirely one way. The notion that somehow Mr Trego breached some obligation of confidentiality in his discussion with Ms Duggan about his own performance review, and that this was an adequate reason (or more importantly, was a true reason) for his dismissal is difficult to accept on the present evidence.
58 Finally, the other reason given for Mr Trego's dismissal, being "[h]indering the HR Investigation Process by refusing to supply a statement to a grievance that was lodged", is also difficult to accept as a reflection of the true reason for his dismissal, on the present evidence before the Court. As I have noted earlier, I consider the position taken by Mr Trego in requiring written allegations about this alleged interaction with Ms Duggan (which was asserted to be so serious as to justify consideration of his dismissal), was a perfectly reasonable and appropriate approach for an employee in his position to take. It was also perfectly reasonable for him to consult his union and for the union to secure him some legal advice. Wesbeam, on the evidence, totally failed to respect this process and to recognise his rights in this situation. To describe Mr Trego's conduct as "hindering" an investigation reveals that lack of respect, and perhaps a complete misunderstanding of what an appropriate and lawful investigative process involves. More materially to the present application, it casts doubt on this as a true reason for his dismissal. Especially so when Wesbeam clearly went on to and made up its mind on Ms Duggan's allegations, because it used her allegations as the fourth reason for Mr Trego's dismissal, and in my opinion escalated their seriousness to a level that not even her own words justified.
59 The applicants' prima facie case is in my opinion of considerable strength as against the first respondent, both as to contraventions based on adverse action against Mr Trego by reason of his industrial activity and contraventions of the coercion provisions of the FW Act.
60 For the purposes of deciding this application, I have not relied on Mr Trego's alleged ineligibility for the role of leading hand on the factory floor. It was common ground Mr Trego did not hold a forklift licence. Mr Blick deposed this was necessary for a leading hand. However, on the other hand, Mr Trego deposed that the worker who was appointed to the position of leading hand had "told [Mr Trego] directly that he had got the position and the wage increase in a meeting with Sue [Krouzecky] and Mark [Blick] on the basis that he resigned from the union". There are competing explanations on this issue and this matter should be left for trial. Nor do I rely upon the allegations concerning whether Wesbeam's employees had their ability to listen to the radio during working hours removed by reason of the involvement of the CFMMEU in the workplace.
61 Further, on this application I make no findings about the existence or strength of the applicants' prima facie case against the second and third respondents. It is not necessary to do so. They are individuals, who are now burdened with serious allegations being made against them, and consideration of their role, if any, in the alleged contraventions should await trial.