FEDERAL COURT OF AUSTRALIA Maritime Union of Australia v DP World Melbourne Limited [2014] FCA 134 Citation: Maritime Union of Australia v DP World Melbourne Limited [2014] FCA 134 Parties: THE MARITIME UNION OF AUSTRALIA and MARK ANTHONY JOHNSTON v DP WORLD MELBOURNE LIMITED File number: VID 74 of 2014 Judge: NORTH J Date of judgment: 18 February 2014 Date of hearing: 14, 18 February 2014 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 30 Counsel for the Applicants: Mr S Moore Solicitor for the Applicants: Maurice Blackburn Counsel for the Respondent: Mr R Dalton with Mr R O'Neill Solicitor for the Respondent: Seyfarth Shaw Australia IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 74 of 2014 BETWEEN: THE MARITIME UNION OF AUSTRALIA First Applicant MARK ANTHONY JOHNSTON Second Applicant AND: DP WORLD MELBOURNE LIMITED Respondent JUDGE: NORTH J DATE OF ORDER: 18 FEBRUARY 2014 WHERE MADE: MELBOURNE UPON THE FIRST APPLICANT by its counsel undertaking to: (a) submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; (b) pay the compensation referred to in (a) to the person there referred to; (c) distribute and orally explain, at the time of any such distribution, to its members employed by the Respondent at West Swanson Dock in Melbourne (the dock) any Reasons for Judgment published by the Court (or other statement issued by the Court) in relation to the Applicants' application for interlocutory relief dated 14 February 2014, AND UPON THE SECOND APPLICANT by his counsel undertaking, until the hearing and determination of the Application or further order, to: (d) submit to an arrangement for the allocation of shifts whereby, without any loss of income to that which he received in his employment immediately prior to 28 January 2014 or change in Fixed Salary Employee classification of employment, he is: (i) rostered to work at the Intermodal Plant for the Respondent's operations at the dock; and (ii) not rostered to work with Annette Coombe (Coombe) or Sharon Bowker (Bowker) and where priority, in the allocation of shifts as between him, Coombe and Bowker, is to be given to Bowker and Coombe; (e) not seek to communicate with or contact Coombe, Bowker, Stewart Bennier or Stephen Zwarts, or procure any other person (save for his legal representatives) to do so; and (f) not undertake activities as a union delegate, save for those relating to the negotiation of a new enterprise agreement to apply at the dock, THE COURT ORDERS THAT: 1. Until the hearing and determination of the Application or further order, the Respondent reinstate the Second Applicant to his former employment with it on the terms and conditions which applied immediately prior to 28 January 2014. 2. The Application is adjourned to a directions hearing at 10.15 am on 28 March 2014. 3. The Application is referred to mediation by a Registrar of the Court. Such mediation to occur after 28 March 2014. 4. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 74 of 2014 BETWEEN: THE MARITIME UNION OF AUSTRALIA First Applicant MARK ANTHONY JOHNSTON Second Applicant AND: DP WORLD MELBOURNE LIMITED Respondent JUDGE: NORTH J DATE: 18 FEBRUARY 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The second applicant, Mr Johnston is a straddle driver employed by DP World Melbourne Limited (DP) at West Swanson Dock in Melbourne. He has worked for DP for 24 years. On 28 January 2014, DP terminated the employment of Mr Johnston. DP employs around 600 workers at Swanson Dock, of whom only 23 are female. 2 Mr Johnston has been a delegate of the Maritime Union of Australia (the MUA) for 18 years. In recent times, he acted as the Chairman of the Employer Relations Committee (ERC) and was at the time of his dismissal, the Vice Chairman. The ERC consists of elected MUA delegates and management representatives. Its function is to help resolve employee/management concerns. 3 In his role as an MUA delegate, Mr Johnston has been involved in negotiating a new enterprise bargaining agreement for the workplace. The enterprise bargaining agreement currently governing the workplace nominally expires on 1 July 2014. Negotiations for the new agreement started in February 2014 and the next round of negotiations is to occur in March 2014. 4 Mr Johnston has also been engaged in his role as an MUA delegate in day-to-day issues in the workplace. In recent times he has raised perceived deficiencies in the rostering system with DP management. In a letter dated 7 October 2012, Mr Johnston also raised several industrial issues with management, such as the frequency of disciplinary warnings and rehabilitation of employees for drug and alcohol use. These issues appear to be of a more serious level of disputation than those raised at ordinary ERC meetings. 5 In an affidavit sworn on 10 February 2014 in support of this application, Mr Johnston refers to an ERC meeting in mid-2012 at which Mr Jena, the General Manager of DP in Melbourne, in effect accused Mr Johnston of being a troublemaker. It is in these circumstances that Mr Johnston claims that he was dismissed by DP because he is an MUA delegate. 6 The applicants allege that a reason for Mr Johnston's dismissal was that he was a delegate of the MUA. Consequently, his dismissal was unlawful pursuant to ss 340(1)(a)(ii), 346(a) and 346(b) of the Fair Work Act 2009 (Cth). In the proceeding, Mr Johnston seeks reinstatement. Presently before the Court is an interlocutory application in which Mr Johnston seeks reinstatement until the trial of the proceedings. 7 DP says that Mr Johnston's role as a delegate had nothing to do with his dismissal. Rather, it says that his dismissal arose from his misconduct. DP says that Mr Johnston induced an employee to lie in the course of an internal investigation at DP. The internal investigation was conducted by DP into an incident in August 2013, in which an employee, Mr Bennier, had publicly complained about his supervisor. In the course of that complaint Mr Bennier said that the supervisor had had a sexual relationship with a female employer, Ms Coombe. Ms Coombe learnt of the remark from Ms Bowker who had overheard it, and Ms Coombe made a written complaint to DP. This was the subject of the internal investigation. Furthermore, DP says that Mr Johnston harassed Ms Bowker, for the reason that she had informed DP about Mr Bennier's remarks. 8 In order to determine the interlocutory application, the Court must consider whether the applicants raise a serious issue to be tried and whether the balance of convenience favours Mr Johnston's reinstatement. 9 Mr Dalton, who appeared with Mr O'Neill for DP, was correct in not contesting that there was a serious issue raised by the applicants. 10 Consequently, the issue left for determination by the Court is whether the balance of convenience favours Mr Johnston's reinstatement. 11 On this question DP took a pragmatic and responsible approach. It recognised that there were disadvantages to Mr Johnston in waiting, possibly for a number of months, until the trial of the action without a job and without financial means to support himself. Consequently, DP offered to pay Mr Johnston his ordinary salary until the trial of the action. 12 However, there are disadvantages for Mr Johnston if he does not attend for work. Mr Johnston is divorced and his work and his role as the union delegate are central to his life. It is likely that the trial of the substantive action will not occur for many months and, in the meantime, he would be deprived of a meaningful occupation. Furthermore, Mr Johnston is committed to, and deeply involved in, the negotiations for the new enterprise bargaining agreement. 13 In an affidavit sworn on 14 February 2014, Mr Jena expressed a number of concerns about Mr Johnston's potential return to work. Mr Jena is a senior manager of DP and his views should be accorded serious consideration. These concerns arise in the context of DP employing around 600 workers, only 23 of whom are female. 14 First, he said that the reinstatement of Mr Johnston would be seen by the workforce as a victory for Mr Johnston and it would thereby undermine the authority of DP management in relation to issues of bullying, harassment and discrimination. Second, Mr Jena said that he was concerned that the female employees in question had experienced harassment and bullying in the workplace since they reported Mr Bennier's comments, and would be exposed to further bullying. Third, he said that DP had lost confidence in Mr Johnston because he had induced Mr Bennier to lie to DP management in the course of the internal investigation, and had himself bullied one of the female workers involved. Fourth, Mr Jena expressed his concern that if Mr Johnston were reinstated it would confirm to employees that they could get away with lying to DP Management and unethical behaviour generally. 15 Mr Jena's evidence was filed at a time when it was too late for the applicants to respond the material therein. Consequently, the matter was adjourned in order to allow the applicants to file further material or any answering material. 16 Three affidavits were filed in response to Mr Jena's affidavit: one by Mr Warren Smith, the Assistant National Secretary of the MUA, another by Mr David Schleibs, the Deputy Secretary of the Victorian branch of the MUA, and a further affidavit by Mr Johnston. In general terms, those affidavits set out that the MUA has a policy against harassment and bullying, that it takes a strong stand against such behaviour, and that it has engaged with DP in an attempt to promote training in this area to the workforce. Further, each of the deponents condemns bullying and harassment. 17 It is of particular significance that Mr Smith has sworn an affidavit. Just as Mr Jena is a v senior manager of DP, so Mr Smith speaks with the highest authority from the MUA. Mr Smith does not believe that Mr Jena's concern about the risk of continuing bullying and harassment would be realised if Mr Johnston were to return to work. He said at [11] of his affidavit: I do not believe that reinstating Johnston until trial would exacerbate tensions in the workplace or lead to increased risks of bullying and harassment for Ms Bowker and Ms Coombe or those supporting them. He continued at [12]: If anything, I believe that reinstating Johnston until trial would relieve tensions at DP World in Melbourne. This is because there is presently widespread concern amongst members that Johnston was treated unfairly by DP World and dismissed because he was a delegate of the MUA. If Johnston is reinstated until trial, in my view this would go some way to relieving tensions at DP World in Melbourne because it would indicate to members that an independent body, namely the Federal Court of Australia, would determine Johnston's claim. 18 Mr Smith then said at[13]: I am also concerned that if Johnston is not reinstated until trial, the MUA will suffer prejudice. This is because many members are of the view that Johnston was dismissed because he is a delegate of the MUA. If Johnston is not reinstated until trial, I am concerned that some members may get the message that union delegates can be unlawfully dismissed without any consequences and that as a result they may be less likely to volunteer to be union delegates, or may have reservations about dealing with bullying and harassment issues in the workplace. 19 A person purporting to act on behalf of Ms Bowker and Ms Coombe contacted the Court yesterday indicating that they may wish to be heard on the present application. They attended Court but did not make any application to be heard. However, the Court asked them to explain their reaction to the possibility of Mr Johnston returning to work. The parties agreed that they should be heard. What emerged from what both said was a chilling picture of a workplace in which they held a genuine fear of harassment and intimidation to them and to the people with whom they associate. Their statements to the Court were helpful in demonstrating what it means to be in this workplace with these problems. Significantly, they explained that the atmosphere of threat and harassment is underlying, often difficult to pinpoint or prove and has been long-lasting. They told the Court that the harassment and intimidation predated the events which led to the dismissal of Mr Johnston. In view of what they have told the Court, it is clear that the Court must proceed with great caution and concern. It would be wrong for orders of the Court to inflame the situation and increase the danger of threatening conduct in the workplace. 20 In order to address these concerns, the applicants proffered a number of undertakings. 21 The MUA has agreed to distribute and explain orally to its members at DP the reasons for any order made by the Court to temporarily reinstate Mr Johnston. The explanation would emphasise that the reinstatement is temporary. The order is made only so that the Court can conduct a full trial under circumstances where the original conditions of employment are left in place. Secondly, such an explanation would emphasise that the reinstatement makes no judgment about the rights and wrongs of the arguments of the parties in the proceedings, but simply allows the Court time to conduct a proper hearing. Finally, and most importantly, the explanation would emphasise that Mr Johnston's reinstatement can be revoked by the Court at any time if there is any evidence that the reinstatement is creating the trouble about which Mr Jena, Ms Coombe and Mr Bowker expressed concern. 22 Mr Johnston offered an undertaking to the Court that he would accept a roster, without loss of income, whereby he would work only at the Intermodal plant. He also offered an undertaking to submit to an arrangement whereby he would not be rostered to work with Ms Coombe or Ms Bowker, or to communicate with them, Mr Bennier or Mr Zwarts, or procure any other person to do so. 23 Mr Johnston also offered an undertaking not to undertake activities as a union delegate, save for those relating to negotiations for the new enterprise agreement. 24 It would do justice between the parties at this stage to reinstate Mr Johnston on these undertakings. This is particularly so because the MUA undertakes to explain to the employees of DP at the workplace the basis upon which the order is made, and the fragility of the order that Mr Johnston return to work. 25 It must be stressed that DP or any other interested person can return to the Court at any time and present an argument that Mr Johnston's reinstatement has in fact resulted in harassment, intimidation or bullying. If that is established, the Court will have no hesitation in discharging the order. 26 The Court has received particular assistance from the oral statements of Ms Bowker and Ms Coombe. It must be acknowledged that they made these statements in circumstances where it was clearly difficult for them to do so. The orders of the Court reinstating Mr Johnston for the moment should not be seen in any way to diminish respect for their situation. It is obvious to the Court that they are, whether justifiably or not is a matter to be determined in due course, feeling threatened and fearful. Nothing that the Court does will be permitted to increase those feelings. 27 Mr Dalton requested that the Court make orders that the statements by Ms Coombe and Ms Bowker be kept confidential. Ms Coombe told the Court that she was not concerned for that to happen. Ms Bowker said that she would prefer that, until the trial, their statements be kept confidential. Public open justice is a fundamental principle of the operation of the Court system. In the circumstances, the grounds for keeping the statements confidential are not made out. 28 If anyone should take action to intimidate, bully or harass either Ms Coombe or Ms Bowker in relation their statements made in the context of these legal proceedings, such person runs the risk of proceedings for contempt which may have very serious consequences. 29 The MUA offered an undertaking as to damages. Mr Dalton submitted that an undertaking as to damages should also be required from Mr Johnston. The purpose of such undertaking is to protect the financial position of DP World. This will be adequately achieved by the undertaking from the MUA. Consequently, the Court does not require an undertaking as to damages from Mr Johnston. 30 On the basis of the undertakings offered by the applicants, the balance of convenience favours Mr Johnston's temporary reinstatement. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 24 February 2014