Australian Workers Union v Simon Engineering (Australia) Pty Ltd [2002] FCA 257

FEDERAL COURT OF AUSTRALIA

Australian Workers Union v Simon Engineering (Australia) Pty Ltd [2002] FCA 257

INDUSTRIAL LAW – interlocutory injunction to restrain termination of employment - employment would have ended before trial in any event

AMIEU v G & K O'Connor Pty Ltd (2000) 100 IR 383 mentioned AUSTRALIAN WORKERS UNION AND ANOTHER v SIMON ENGINEERING (AUSTRALIA) PTY LTD NO V 81 OF 2002 HEEREY J 26 FEBRUARY 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V81 OF 2002

BETWEEN: AUSTRALIAN WORKERS UNION AND ANOTHER

APPLICANT

AND: SIMON ENGINEERING (AUSTRALIA) PTY LTD

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 26 FEBRUARY 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application for an interlocutory injunction is dismissed.

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 V81 OF 2002

BETWEEN: AUSTRALIAN WORKERS UNION AND ANOTHER

APPLICANT

AND: SIMON ENGINEERING (AUSTRALIA) PTY LTD

RESPONDENT

JUDGE: HEEREY J

DATE: 26 FEBRUARY 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The second applicant, Mr Peter Rayner, was, up until termination on 31 January 2002, employed by the respondent Simon Engineering (Australia) Pty Ltd as a rigger on a project in the Latrobe Valley called the Peaker Project. This project was for the construction of a gas-fired power station. It commenced on 7 August 2001 and was due to be completed by 15 January 2002. For a variety of reasons the work has not been completed but the best evidence at the moment suggests that it will be completed by the first or second week of April. 2 As might be expected for a short-term project of this nature, employment numbers have fluctuated. At the peak the respondent had 169 employees engaged. Since then there have been five rounds of redundancies between 9 January and 1 February 2002. The current number employed is 52. Another round of redundancies is expected in about two weeks' time. 3 Mr Rayner says that his termination was unlawful because it was made for reasons which included prohibited reasons, namely, his making a claim for travelling allowance and his position as a union delegate on the site. This claim is denied by the respondent which has put on affidavit evidence raising a defence to Mr Rayner's claims. However, the respondent understandably accepts that by reason of the statutory reversal of the onus of proof in s 298V of the Workplace Relations Act 1996 (Cth) (the Act), there would be no point in disputing that there is a serious issue to be tried. The question therefore becomes whether or not the balance of convenience points towards the grant of interlocutory relief. 4 There is no doubt that there is jurisdiction in this Court to grant interlocutory relief which has the effect of reinstating employment when there is complaint under Part XA of the Act: see AMIEU v G & K O'Connor Pty Ltd (2000) 100 IR 383 and the cases therein cited. 5 The circumstance, however, that makes this case rather special is the nature of the employment. Not only is the job itself one that was known from the start to have a fixed term to be measured in months, albeit that it has since been extended by a few months, but as I understand it, the nature of Mr Rayner's work is inherently one in which there must be a move from one construction project to the next. It is common ground that it would not be possible to complete a substantive trial of this matter before any employment at the Peaker Project came to an end in any event by reason of the completion of the work. Therefore there is the problem, it seems to me, that Mr Rayner is seeking by way of interlocutory injunction relief that which he will never be able to obtain at the trial. I think this in itself points, possibly conclusively, against the exercise of discretion. This is not a case where a plaintiff seeks by way of interlocutory injunction all the relief which could be obtained at a final trial. (The supposed rule of practice against the granting of such an injunction is now "regularly disregarded": Meagher, Gummow & Lehane, Equity Doctrines & Remedies (3rd ed) at 601.) Rather, it is a case where the relief sought on an interlocutory basis could never be obtained at trial. Interlocutory relief is granted without parties having the opportunity to fully present their respective cases. It seems wrong in principle that a party should obtain permanent relief without a trial. 6 There are some other matters which counsel for Mr Rayner, in a thorough and helpful argument, put forward. There is first the question of Mr Rayner's financial difficulties. It is said that he has a family, a wife and two school‑aged children, and that he has mortgage commitments of some $1000 a month. He has recently had expense in relation to school fees and some related expenses of some $2500. He has had to apply to a bank for an extension of his credit card limit. There is no evidence as to the result of that application. On the other hand it does appear that he has recently purchased a car for some $65,000. I do not wish to be seen as minimising Mr Rayner's financial problems, but they do seem to be inherent in the nature of his work, which is not continuous. No doubt similar problems have to be coped with by the other employees who of necessity have been made redundant as the work on the Peaker Project winds down. 7 It does seem also that the attempts by Mr Rayner to obtain alternative employment have been not as energetic as they might have been. His initial affidavit made no mention of any attempts. When the respondent filed an affidavit pointing out half a dozen or so employment opportunities for riggers in Victoria, Mr Rayner then responded giving various reasons why those were not or would not be available. Thus his approach on this issue has been essentially a reactive one. There was no evidence of him seeking work with other possible employers other than those the respondent nominated, all of which are in Victoria, nor of seeking employment interstate or overseas. 8 It was said that Mr Rayner would suffer damage to his reputation, that rigging was specialised work, that most riggers were known to contractors who engaged them, and his reputation would be damaged by being terminated from employment on this project when less qualified and experienced riggers had been retained. I must say I find this fairly speculative. An interlocutory injunction of course is not going to resolve any question of vindication of Mr Rayner's reputation. Anyway, it seems unlikely that a prospective employer would be put off from employing an otherwise experienced rigger simply by reason of the fact that he had worked on a project for some six to seven months and had not stayed on the project right until the last day. 9 So for those reasons the application for an interlocutory injunction is dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.