FEDERAL COURT OF AUSTRALIA Gillow v George Weston Foods Ltd [1999] FCA 605 ROBIN WALTER GILLOW & MARY POULIOS v GEORGE WESTON FOODS LTD V 95 OF 1999 NORTH J 1 APRIL 1999 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 95 OF 1999 BETWEEN: ROBIN WALTER GILLOW First Applicant MARY POULIOS Second Applicant AND: GEORGE WESTON FOODS LTD. Respondent JUDGE: NORTH J DATE OF ORDER: 1 APRIL 1999 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for interim relief made by the second applicant is dismissed. 2. The application for interim relief made by the first applicant and a directions hearing is adjourned until 10:15 a.m. on 26 April 1999. 3. The proceeding is referred to the mediation of Registrar Efthim at 2:15 p.m. on 14 April 1999, and the Registrar is to report the outcome of the mediation to the court by 23 April 1999. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 95 OF 1999 BETWEEN: ROBIN WALTER GILLOW First Applicant MARY POULIOS Second Applicant AND: GEORGE WESTON FOODS LTD. Respondent JUDGE: NORTH J DATE: 1 APRIL 1999 PLACE: MELBOURNE EX TEMPORE REASONS FOR JUDGMENT 1 This is an application for interim relief by Robin Walter Gillow and Mary Poulios. The respondent is their employer, George Weston Foods Ltd. Mr Gillow and Ms Poulios seek orders that, until the final determination of this matter or further order of the Court, the respondent by itself, its servants or agents (a) roster Mr Gillow to work in his current employment in the loading bay area of the bakery referred to in the statement of claim for at least as many hours per week as any other casual worker in that area, and in any event not less than 85 per cent of the hours rostered for permanent employees in that area; (b) roster Ms Poulios to work in her former employment in the crumpet line of the bakery referred to in the statement of claim for as many hours per week as any other casual worker on that line, and in any event not less than 85 per cent of the hours rostered for permanent employees on that line. 2 The claim for interim relief is based upon the allegation that the respondent has acted in breach of section 298K of the Workplace Relations Act 1996 (Cth) (the Act) which relevantly provides: An employer must not for a prohibited reason or for reasons that include a prohibited reason do or threaten to do any of the following ... (b) injure an employee in his or her employment, (c) alter the position of an employee to the employee's prejudice. 3 The prohibited reason relied upon in this application is to be found in section 298L(1)(a) of the Act as follows: Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned: (a) is, has been, proposes to become or has at any time proposed to become and officer, delegate or member of an industrial association;... 4 In essence, the applicants complain that they, as casual employees of the respondent, have suffered a reduction of work hours for the reason that they have joined the Automotive Food Metals Engineering Printing and Kindred Industries' Union (the Metals Union) and/or because they resigned from the Liquor, Hospitality and Miscellaneous Workers' Union (the Miscellaneous Workers' Union). 5 In order to obtain interim relief in accordance with general principles, the applicants must demonstrate a serious issue to be tried and that the balance of convenience favours the grant of an injunction. It is convenient to deal with the claims for orders by each of the applicants separately. I first deal with the claim by Ms Poulios. 6 In relation to the question of the existence of a serious issue to be tried in respect of Ms Poulios, and indeed on the balance of convenience, I have come to a clear view. In my view she should not have interim orders made in her favour, principally for two reasons. The first is that I am not satisfied on the material that she has in fact suffered any reduction in her hours of work. The summary of hours worked over a number of years compared with recent hours worked, does not reveal a significant difference. This is confirmed by a comparison of the hours worked in January and February in the last three years. 7 Thus, Ms Poulios has not satisfied me that there is a serious issue to be tried, that she has suffered any prejudice or injury in her employment as is required. 8 But even if I were satisfied that Ms Poulios had made out a serious issue to be tried, there is not sufficient evidence that the balance of convenience favours the grant of interim relief. Mr Borenstein, who appeared on behalf of the applicants, frankly acknowledged that Ms Poulios could not say by reference to specific evidence that she would be prejudiced between now and the trial of the action by failing to earn what she said she previously had been earning. 9 Mr Borenstein also put on behalf of Ms Poulios that the balance of convenience favoured the making of orders because she would, in the absence of orders, be pressured into joining the Miscellaneous Workers' Union. The difficulty with this argument is that Ms Poulios herself does not rely upon this potential pressure on her as a reason for interim relief. For those reasons I refuse to make orders in favour of Ms Poulios. 10 In relation to Mr Gillow, the position is different. There is no doubt in his case that he has suffered a recent reduction in hours worked by comparison to pre‑December 1998 working hours. I do not accept the argument of the respondent that Mr Gillow's situation fails to amount thereby to an injury or alteration of position within the meaning of section 298K(1)(b) and (c). That is to say, I do not accept that, even if the reduction in hours was the result of a general policy to reduce casual hours, it is not a relevant injury or alteration to the prejudice of Mr Gillow within the meaning of the section. 11 Dr Jessup who appeared with Mr Wheelahan for the respondent, argued that Mr Gillow could not establish a serious issue to be tried in the absence of evidence that Mr Gillow was eligible to be a member of the Metals Union. That, he said, was a requirement for liability and the onus of proof of membership lay upon the applicants. In my view Mr Gillow has sufficiently established the basis for liability under sections 298K(1) and 298L(1)(a) by deposing to the fact that he joined the Metals Union. However, I need not rely upon this matter to find that Mr Gillow has established a serious issue to be tried. Rather, I base that conclusion upon the fact that there is evidence that Mr Gillow resigned from the Miscellaneous Workers' Union and that his failure to remain a member of that union is arguably one of the reasons which motivated the respondent to shift Mr Gillow from the bakery into the loading area and thereby to cause him to suffer a reduction in his hours of work. 12 Dr Jessup, however, contended that the primary basis upon which the applicants had always put their case was that the conduct of the respondent was motivated by the applicants joining the Metals Union and not by the applicants failing to join or resigning from the Miscellaneous Workers' Union. On the evidence as a whole, it is arguable at this stage of the proceedings that such a distinction is too fine and that in truth the applicants' contention involves either or both of the propositions that the respondent's conduct was motivated by a disfavour against the applicants joining the Metals Union and resigning from the Miscellaneous Workers' Union. 13 I move to the question of the balance of convenience in respect of Mr Gillow. I do so against the background that Mr Gillow's claim, although raising a serious issue to be tried, does not raise a strong claim. There is considerable difficulty in his case. Mr Gillow deposes that the reduction of hours made his financial position extremely difficult. His evidence arouses sympathy and makes a strong claim that Mr Gillow be given some protection by orders of the Court until the trial of the action. 14 Against that, however, is the evidence that towards the end of 1998, apparently irrespective of the events surrounding Mr Gillow, the respondent changed its policy relating to the use of casual workers. Thereafter as a matter of general policy and without any prohibited reason the respondent intended to ensure that casual workers were used for no more than approximately 24 hours per week. I approach the making of orders compelling the respondent to offer Mr Gillow a specified number of hours or a number of hours formulated by reference to the maximum hours worked by other casual employees, with a deal of reticence. 15 One reason is that the respondent is entitled to change its policy for reasons it regards as proper, provided it is not influenced by any prohibited reason. Another is that orders in favour of Mr Gillow will necessarily cause disadvantage to other employees. Their position should be taken into account in a general way although their particular circumstances were not before the Court. 16 I am called upon in this application to make the orders in the terms sought by Mr Gillow. Although I hold that he is entitled to the protection of some orders of the Court, I am not satisfied that the orders proposed are appropriate in the circumstances. Rather, I intend to refer the matter to mediation by a registrar of the Court, which will occur at 2:15 pm on 14 April 1999, and give liberty to Mr Gillow to return to Court if the matter is not resolved at the mediation and he wishes to argue in light of the findings I have made that some other form of appropriate orders should be made. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 1 April 1999 Counsel for the Applicant: H Borenstein Solicitor for the Applicant: Maurice Blackburn & Co Counsel for the Respondent: C Jessup QC Solicitor for the Respondent: Corrs Chambers Westgarth Date of Hearing: 1 April 1999 Date of Judgment: 1 April 1999