Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union v Visy Packaging Pty Ltd (No 2) [2011] FCA 953

FEDERAL COURT OF AUSTRALIA

Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union v Visy Packaging Pty Ltd (No 2) [2011] FCA 953 Citation: Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union v Visy Packaging Pty Ltd (No 2) [2011] FCA 953

Parties: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION and JONATHAN PHILIP ZWART v VISY PACKAGING PTY LTD, TONY SCOTT and ROBIN STREET

File number: VID 867 of 2011

Judge: MURPHY J

Date of judgment: 31 August 2011

Catchwords: INDUSTRIAL LAW – adverse action – whether reliance on final written warning constitutes adverse action – reason for taking adverse action need not be the sole or dominant reason – reverse onus of proof in prosecutions of adverse action – workplace rights - obligations to ensure workplace safety a role or responsibility under a workplace law INDUSTRIAL LAW – relief – application for injunctive relief to restrain employer from relying on final written warning – Court's power to grant injunctive relief to restrain adverse action PRACTICE AND PROCEDURE – injunctive relief –balance of convenience – existence of prima facie case

Legislation: Fair Work Act 2009 (Cth) ss 12, 340, 342, 360, 361, 545 Federal Court of Australia Act 1976 (Cth) ss 21, 22, 23 Occupational Health and Safety Act 2004 (Vic) s 25

Cases cited: Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union v Visy Packaging Pty Ltd [2011] FCA 1001 Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 Police Federation v Nixon (2008) 168 FCR 340