Director General, New South Wales Department of Health v. Industrial Relations Commission of New South Wales [2010] NSWCA 47 (22 March 2010).

The New South Wales Court of Appeal has acted swiftly in the wake of the High Court decision of Kirk v. Industrial Relations Commission (NSW) [2010] HCA 1 in making orders against a decision of the Full Bench of the Industrial Relations Commission of New South Wales. Hitherto, one would have thought, the IRC decision would have been protected by the privative provisions of the Industrial Relations Act, s.179. This case involved an unfair dismissal claim squarely within the arbitral jurisdiction of the Industrial Relations Commission not the Industrial Court. It concerned a ward orderly in a public hospital who was summarily dismissed after taking a photograph of a naked two year old patient. He brought an unfair dismissal claim which at first instance was rejected. He appealed and the Full Bench allowed the appeal. The matters which were challenged before the Court of Appeal were the form of orders made by the Full Bench. Those orders were not to reinstate but to re-employ the Applicant in his former position. Further, it was ordered that he would not return to work and would resign in writing effective from the day immediately following the date of the decision. However, he was awarded his wages he would have received had be remained at work in the two year period from dismissal to the date of the Commission order.

The Court of Appeal considered the powers which the Commission could exercise under s.89 of the Industrial Relations Act and found that the Full Bench erred in relation to the exercise of the powers available to it . Writing the judgment on behalf of the Court, Chief Justice Spigelman found “both jurisdictional error and error of law on the face of the record”. He did this on three bases. Firstly, the order to re-employ the ward orderly was not authorised by the statute ,that is, to have him re-employed in his former position, secondly, the Full Bench failed to make findings essential as a pre-condition to the exercise of the statutory power and thirdly, a condition requiring a person to resign and not return to work was outside the permissible sphere of any order capable of answering the description of an order to “re-employ”. [22]

This case is a firm assertion by the Court of Appeal of its supervisory jurisdiction. The Chief Justice found that the orders made by the Commission misconstrued the statute and disregarded “both the nature and the limits of its functions and powers and made an order of a kind which lies outside the theoretical limits of its powers” (see Craig v. South Australia [1995] HCA 58). As a consequence he applied the test for the exercise of supervisory jurisdiction over an inferior Court. [24]

It is quite clear that the Court of Appeal will not be exercising the reserve it once had in relation to privative clauses and in particular privative clauses seeking to preserve the orders made by the Industrial Relations Commission of New South Wales even in industrial matters. In Dow Corning Australia Pty Ltd v. Monk & Ors [1984] 3 NSWLR 13, Justice Hutley, writing in the majority, refused to intervene in relation to an unfair dismissal order made by the Industrial Relations Commission. He said this was for the following reason; “It seems to me that where there is a colourable basis for claiming a matter is an industrial matter, or relates to an industrial matter, then the privative clause operates and the Supreme Court has no jurisdiction.”

In a speech delivered by Chief Justice Spigelman to the AGS Administrative Law Symposium, Commonwealth and New South Wales on 25 March 2010, dealing with the Kirk matter, His Honour said that the Kirk case will engage administrative lawyers for years. In that paper, he sets out that it will be easier to have the Supreme Court exercise its supervisory jurisdiction now that decisions purportedly protected by privative provisions have been rendered more open absent the tighter restrictions formerly imposed by the so called Hickman Principles. Now the supervisory jurisdiction of the Court of Appeal has been extended to unfair dismissal matters. It will also mean that other industrial matters well within the industrial arbitral role of the Commission will no longer be protected and final, but will be reviewable on the basis of jurisdictional error or error of law.

1. (1984) 3 NSWLR 13 at 17 F. See also Young v. Public Service Board [1982] 2 NSWLR 456 and Slattery v. Public Service Board [1983] 3 NSWLR 41 and Houssein v. Under-Secretary of Department of Industrial Relations & Technology (NSW) (1982) 148 CLR at 88.

Kirk & Anor ats WorkCover Authority of New South Wales [2010] HCA 1 (3 February 2010) .

In its first decision of 2010, the High Court has handed down a very important judgement concerning  the conduct of occupational health and safety prosecutions in New South Wales.  The High Court has rebuked both the WorkCover Authority and the Industrial Court of New South Wales  not only in  the way this case was dealt with, but also in the way others have been handled for many years.  The Appellants before the High Court were a company and its director, Mr Kirk.  The company owned a farm and as Mr Kirk had no farming experience he left the day-to-day operation to a manager.  Whilst so engaged, the manager, rather than use a formed and safe road, drove an off-road vehicle down the side of a hill, it overturned and the manager was killed.  The manager who had far more experience and skill than Mr Kirk had his behaviour described by Justice Heydon as being “inexplicably reckless.” [125]. The reporting of this case has gone beyond the normal legal journals and has been widely reported in the general press.

In the Legal Affairs section of The Australian on the 5 March 2010, it was reported that the conviction rate for Defendants charged under this Act before the Industrial Court of New South Wales has been running at 98.4%.  That rate is said to be well above the conviction rates in other States dealing with comparable workplace safety laws.

The judgment contains a combined decision of their Honours French CJ, Gummow J, Hayne J, Crennan J, Keifel J and Bell J and a single judgment  by Justice Heydon.  The tone of Justice Heydon’s judgment is such that he must have felt compelled to state his own firm views as to how both the Prosecutor and the Court had fundamentally misconstrued their respective obligations.

The combined judgment considered the nature of the offences created by the statute and the charges brought against the Appellants.  A criticism of the charges, perhaps recalling the fate of Josef K in The Trial by Kafka was that “they did not quote or identify the deficiency in the system or the measures that should have been taken to address it.” [28]. The charges lacked the relevant particularity which at common law, was said to be necessary in order to provide a valid summons or information.  What the charges did not provide was the necessary step which was to “identify the measure which the employer should have taken as relevant to the offence.”  An examination of the decision of the Industrial Court is consistent with the cases in that Court which are said to “establish the proposition that a Prosecutor is not required to demonstrate that particular measures should have been taken.” [32].

The problem for the Industrial Court on the issue regarding the provision of particulars started with the single judge decision in WorkCover Authority v Fernz Construction (1999) 91 IR 119 @132 which was more keenly  followed rather  than the more traditional criminal pleading principles  found in  the  Full Bench and trial judge’s  decisions in Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363;(1993) 53 IR 7.

Importantly at paragraph [34] of the combined judgment the following is stated:

“Walton J referred to earlier case law that the duty imposed upon an employer “is to be construed as meaning to guarantee, secure or make certain” and that the duty is directed at obviating “risks” to safety at the workplace.  References to guarantees, an emphasis upon general classes of risks which are to be eliminated, tend to distract attention from the requirements of an offence against ss 15 and 16.  The approach taken by the Industrial Court fails to distinguish between the content of the employer’s duty, which is generally stated, and the fact of the contravention in a particular case.  It is that fact, the act or omission of the employer, which constitutes the offence.  Of course it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16.  It is also necessary for the Prosecutor to identify the measures that should have been taken.  If a risk was or is present, the question is – what action on the part of the employer was or is required to address it?  The answer to that question is the matter properly the subject of the charge.”

The combined judgment further criticised the judge below in that by not requiring the particular measures that should have been taken to have been pleaded, the Defendant company and its director were unable  then to  call upon the operation of the statutory defences.  Rather, the Defendant company and its director was required to show why it was not reasonably practicable to eliminate possible risks associated with the use of the off- road vehicle.

Wrongly, the operation of the statutory defence was confined by the trial judge to the issue of foreseeability [38].

The combined judgment also recognised a further error in that Mr Kirk was called by the Prosecution as a witness even though that course had been agreed by both sides [50].  This problem partly arose out of the fact that Mr Kirk was a competent witness against his company.  The fact that he was called in the case against himself was contrary to the Evidence Act, as against himself he was not competent to give evidence as a  witness for the Prosecution [51].  It was said this departure from the rules of evidence was  substantial.

The combined judgment also dealt with more technical issues dealing with jurisdictional error and the privative provision found in s 179 of the Industrial Relations Act NSW which purportedly protects decisions of the Industrial Court from appellate review.  It was said that such finality or privative provisions have been a prominent feature in the Australian legal landscape for many years; however, they are affected by constitutional considerations [93].  It was said that the supervisory role of State Supreme Courts to control the exercise of State executive and judicial power by persons and bodies other than the Supreme Court was one of the defining characteristics of such courts [98]. If it deprives State Supreme Courts of this power it would be to “create islands of power immune from supervision and restraint” and develop “distorted positions.” [99]. Importantly, legislation that would “take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power.” [100].Clearly and loudly it has been stated that  the Industrial Court is a court sub-ordinate and  subject to the supervisory jurisdiction of the Supreme Court of New South Wales. [102].

Justice Heydon agreed with the substance of the reasons stated in the combined judgment but separately provided a  forceful  decision.  Perhaps more accurately he fashioned  two  lightning bolts hurled Thor-like  in the direction of the WorkCover Authority and the Industrial Court.  The fact that the Prosecution called Mr Kirk as its own witness in a criminal case was in defiance of the prohibition to do so in s 17(2) of the Evidence Act , therefore the trial was conducted not in accordance with the rules of evidence  [114]. This failure to follow the rules of evidence amounted to jurisdictional error  [115]. Sub- section 17(2) of the Evidence Act was an absolutely fundamental rule underpinning the whole accusatorial and adversarial system of criminal trial in New South Wales [115].

One of the major attacks he made was on an issue that the trial judge had found as crucial.  That matter was that Mr Kirk “Did not supervise the daily activities of the employees or contractors working on the farm.”  To that Justice Heydon said,

“The suggestion that the owners of farms are obliged to conduct daily supervision of employees and contractors – even the owners of relatively small farms like Mr Kirk’s – is, with respect, an astonishing one.  A great many farms in Australia are owned by natural persons who do not reside on or near them, and a great many other farms are owned by corporations, the chief executive officers of which do not reside on or near them — (it) being offensive to a fundamental aspect to the rule of law on the ground that it imposed obligations which were impossible to comply with and burdens which were impossible to bear.”  [120].

Justice Heydon then went on to describe the next striking aspect of the proceedings before the Full Bench of the Industrial Court.  [121]. The Full Bench described the Appellants’ earlier application to the Court of Appeal as “forum shopping.” He said it was inappropriate to describe the conduct of litigants who, aggrieved by the decision of a court of New South Wales attempted to remedy it by making an application to the Court of Appeal  [121].  This amounted to “an assertion of exclusive dominion over the fields within its jurisdiction and did not recognise that the Industrial Court was controllable by the Court of Appeal and that the Industrial Court was bound, both its trial judges and Full Bench to follow the law as stated by the Court of Appeal.  [121].  ….its merits should not have been the subject of pejorative language.”  [121].  This led in turn to Justice Heydon stating how sometimes the  legislature elects to create separate or specialist courts to determine particular types of litigation.  [122]. He said some specialist courts “tend to lose touch with the traditions, standards and mores of the wider profession and judiciary.”  And, that they become over-enthusiastic about vindicating the purposes for which they were set up and exult that purpose above all other considerations. At [122] He cited Walker on the Rule of Law (1988)( at p 35) as follows:

“History teaches us to be suspicious of specialist courts and tribunals of all descriptions.  They are usually established precisely because proceedings conducted in accordance with normal judicial standards of fairness are not producing the outcomes that the government wants.  From the Court of Star Chamber to the multitude of military courts and revolutionary tribunals in our own century, this lesson has been repeated time and time again.”

This judgment comes at a difficult time for the Industrial Court and provides much guidance to the WorkCover Authority of New South Wales.  The difficult time for the Industrial Court is that it is a court and a tribunal under siege. It has been slowly reduced in its scope by state legislative change and more profoundly  by the Howard government’s WorkChoices Legislation. The effect of which has been enhanced by the State government and the passing late last year of  the Industrial Relations (Commonwealth Powers) Act 2009) which transferred the rest of  NSW employers to the national system save for employers in the public sector and local government. Importantly, the harmonisation of occupational health and safety laws is something which will come about in the next few years. Justice Heydon’s criticism of the Court not being one where people with wide criminal law experience are to be found may be a telling reason why the occupational health and safety jurisdiction may be transferred to one of the ordinary courts such as the District or Supreme Courts or both.  The Industrial Court has at least 12 to 18 months to recognise its position in the hierarchy of courts in New South Wales and to  be of good behaviour should it wish to retain this important part of its jurisdiction .

The WorkCover Authority’s role in the prosecutions and  in turn the Department of Mineral Resources and indeed secretaries of trade  unions   with the advent of harmonisation of occupational health and safety laws  need to be  calmly considered as to  whether it is appropriate  they  continue to have the right to prosecute.  The right to prosecute may better be given to the Director of Public Prosecutions, an independent prosecutorial body perhaps better placed and more used to prosecuting breaches of the criminal law.  Rumour has it that the WorkCover Authority is reviewing all its current investigations and prosecutions . To overcome its past failures and the erroneous application of the safety laws as revealed by the High Court, the  WorkCover Authority  ought have a close consideration of closed files where the have been bad convictions and sentences imposed particularly against individuals .The provisions of the Crimes (Appeal and Review ) Act 2001 , may assist the Authority to show true remorse and provide an avenue for some of the unfairly treated personal defendants to have their convictions quashed and  receive a pardon .

Ford Motor Company of Australia Limited ats Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors [2009] FWAFB 1240 dated 11 December 2009.

Telstra Corporation Limited ats Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2009] FWAFB 1698 dated 15 December 2009.

1. The Full Bench of Fair Work Australia last December handed down two decisions which show that that Tribunal despite its ability to approve protected industrial actions in certain circumstances will only do so when the Applicants for such protection comply with the complex technical regime set out in the Fair Work Act.

2. The Full Bench’s refusal to approve the protected action applications no doubt fulfils sensible people’s views that strike action is to be avoided and even when permitted by legislation, contrary to the common law, will only do so when all the technical requirements have been met. These two decisions provide significant instruction to industrial parties setting out when and in what circumstances such protected industrial action orders will be granted.

3. The first case involving the Ford Motor Company concerned an Appeal from a decision of Senior Deputy President Watson who had made orders authorising the holding of protected action ballots by certain employees of the Ford Motor Company. The Full Bench in this case provided further explanation of the provisions relating to bargaining for new enterprise agreements and the time at which and when a protected action balloting orders could be made. The hitch in this case was that a small section of the employees of Ford were covered by an agreement, which was yet to expire. Ford after extensive bargaining had occurred, wrote to the other side indicating that the agreement could not cover all the relevant employees and as a consequence the unions could not apply for a protected action ballot order. The unions, in response sought to exclude some employees from the negotiations.

4. The majority decision of the Tribunal (Senior Deputy President Kaufman and Deputy President Ives) in a joint judgment upheld the appeal based upon the scheme of the Act and a close reading of the technical provisions for the securing of such protected action [17] et seq.

5. The Notice requirements set out in s 173 of the Fair Work Act were crucial and as was the time when such Notice was given to the employees to be covered by the proposed agreement. Attempts after such a Notice was given to exclude some employees from the agreement proved ineffectual.

6. The majority said that it was inherent in the entire bargaining process that the employer bargain for a proposed agreement that will cover an identified group of its employees [35]. The “proposed agreement” referred to in s 443(1) is “the proposed enterprise agreement” found in s 173(1) in respect of which an employer must give to its employees a Notice of their representational rights [36]. The identity of the employees to be covered by the “proposed agreement” must be clear and be known at all stages of the bargaining process [45].

7. The majority held that the discussions which occurred after the purported exclusion of the employees covered by an existing agreement were nothing more than general discussions about aspects of an agreement that might be formally the subject of bargaining under the Act once the employees who were to be covered by it were ascertained [49].

8. Commissioner Lewin although would have granted leave to appeal he dismissed the appeal and provided reasons for his dissent [51] et seq.The unions were left with no choice but to recommence the entire process.

9. I now turn to the Telstra Appeal. Telstra had sought a decision from Vice President Lawler of Fair Work Australia that an Order should be made under s 418 of the Fair Work Act in relation to industrial action proposed by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). Section 418 provides that Fair Work Australia must make an Order that industrial action stop or not occur if it is satisfied that the industrial action is not, or would not be, protected industrial action. Before the Vice President and the Appeal Bench it was common ground that pursuant to s 413(4), industrial action is not protected action unless the notice requirements in s 414 have been met. Relevantly, s 414(6) provides:

“A Notice given under this section must specify the nature of the action and the day on which it will start.”

The evidence below was that the following Notice was given in relation to the proposed industrial action:

“The employee claim action will take the form of an unlimited number of indefinite stoppages of work by those CEPU members whose normal place of work is all States and Territories of Australia.

The employee claim action will occur between the hours of 12:01am and 11:59pm on Wednesday 2 December, 2009.”

10. It was Telstra’s case below and on Appeal that the Notice failed the requirements set out in s 414(6) in that it was too indefinite and vague. The Full Bench in considering the adequacy of the Notice considered the context in which Telstra operates in Australia. It employs some 34,000 employees in hundreds of work locations throughout Australia. The evidence did not indicate the number of employees relevantly who were members of the CEPU. It was also noted that the potential effect on Telstra’s operations of industrial action by CEPU employees could be very significant. In considering the expression “indefinite stoppages” the Full Bench found that whether it complies with s 414(6) would depend upon the context in which it appears and the surrounding circumstances. The Full Bench said:

“In this case the use of the expression does very little to shed light on the nature of the action to be taken. First, the expression is used in the plural. This indicates that there will not be one stoppage of all CEPU members, but there will be a number of them, thereby raising questions about the precise number and the location of the stoppages. Secondly, the expression is used in the Notice in conjunction with the words “an unlimited number”. Read as a composite phrase the potential for variation in the number, length and location of stoppages is very wide.” [14]

Further they said:
“The Notice does no more than specify that there will be stoppages of an indeterminate number and length at locations at which CEPU members work.” [15]

The Full Bench respectfully disagreed with the Vice President’s conclusion in relation to the adequacy of the Notice and said:

“—it is implicit that the description of the action contained in the Notice should be sufficient to put the employer in a position to make reasonable preparations to deal with the effect of the industrial action. In order to prepare for all eventualities contemplated by the Notice in this case, Telstra would have to plan on the basis that every CEPU member would be on strike for the whole of the day in question. Yet that is not what the Notice says. Given the nature of Telstra’s operations some greater specification would be required. Indeed, on one view the Notice conceals more than it reveals about the industrial action that will in fact occur.” [16]

The Full Bench ultimately found that the Notice failed to comply with the provisions required in s 414(6) although said that:

“whether a particular Notice meets the requirements… will depend upon its terms and industrial context .Every case is different and each Notice must be looked at having regard to all relevant considerations.” [18]

11. The importance of complying with the technical legislative requirements is important for employees going on such industrial action. Not to have such protection could expose themselves and their union officials or bargaining agents to actions for damages arising out of breach of contract or the economic torts such as inducing a breach of contract or interfering with contractual relationships.

Andonovski ats Park Tec Engineering Pty Limited, [2009] NSWCA 305.

Many cases come before the Courts where the Plaintiff does not know whether he or she is an employee, and if he or she is an employee, the identity of the employer.   Andonovski ats Park Tec Engineering Pty Limited is such a case which has  been decided by the  NSW Court of Appeal on the 27 October 2009 comprising their Honours Tobias JA, Young JA and Sackville AJA who wrote the judgment with which the others agreed.

It was common ground that Mr Andonovski was employed by a company within the Barbeques Galore group.  However, the identity of the employing company within the group became a very important question under  the provisions of the Workplace Injury Management and Workers Compensation Act 1998 and also the Limitation Act.  Mr. Andonovski  had commenced employment with the Barbeques Galore group in about late 1996 or early 1997 and whilst working at the premises of a subsidiary of the Barbeques Galore group in March 2004, injured himself when he was attempting to empty some cardboard waste contained in a wire cage, when he  encountered some difficulties which led him to fall backwards from a platform onto a concrete floor.  The premises were occupied by Park Tec, which manufactured components for barbeques and other items.  When injured, Mr Andonovski was given a workers’ compensation claim form to complete under the heading, “Park-Tec Engineering Pty Limited.”  In determining this  appeal  from a District Court Judge who  had found that Park Tec Engineering was the employer, Justice Sackville went through a number of the indicia or hallmarks of employment, in order to determine on an objective basis who was the employer.  His Honour referred  approvingly to a decision  of Shaw ats Bindaree Beef [2007] NSWCA 125 where Giles JA at [61]-[62] said that,

“In ascertaining which entity has entered into a contract of employment it is to be determined on an objective assessment of the state of affairs relating to the contract.  The subjective intention of the parties is not material to the enquiry.”

Justice Sackville said that ordinarily, the starting point for identifying a person’s employer might be expected to be his or her letter of employment.  Neither party tendered a letter of employment, either in relation to the Appellant’s first period of employment, or his second period of employment.  No evidence was called from the signatory to the letter of termination given to Mr Andonovski on a Barbeques Galore letterhead on the 10 November 2004.

In order to assist as to the identity of the employer, Justice Sackville cited authority, which  concerned the distinction between employment and independent contract.  In particular, reference was made to Justice Mason’s judgment in the High Court in Stevens ats Brodribb Sawmilling [1986] HCA 1; 160 CLR 16 at page 24, where Justice Mason said,

“In determining the nature of the relationship between a person who engages another to perform work and the person so engaged, is the degree of control which the former can exercise over the latter.”

However, as Justice Sackville quite rightly pointed out [55], the extent of control whilst significant is not the sole criteria to apply.  He referred to Justice Mason referring to other relevant matters being,

“The mode of remuneration, the provision of maintenance and equipment, the obligation to work, the hours of work and the provisions for holidays, the deduction of income tax and the delegation of work by the putative employee.”

Using such general principles, some of which were relevant and some  not  to the task at hand, Justice Sackville pointed to a number of matters such as the Applicant having completed a form seeking employment with, “Group employer – Barbeques Galore Limited” [24].  The weekly payslips issued were in the name of Barbeques Galore and made no mention of Park Tec [25].  The payment summary provided to the Appellant for the year ending 30 June 2004, issued for income tax purposes, recorded the payee’s name as Barbeques Galore [26] and the letter of termination was signed on the letterhead of Barbeques Galore [27].  Contrary to that, was the admission by Park Tec in the pleadings that it was the employer and that a code number  on the employee’s details in the personnel file referred to the employer as Park Tec, although later  inexplicably, the code number changed to a different one .  Also tending towards Park Tec,  was  that the work was performed at Park Tec’s premises involving Park Tec’s operations and leave forms were submitted to and approved by Park Tec [34].  Justice Sackville dealt with this evidence and identified that some of the evidence was probative, some less so, however, on the balance of probabilities, found that the trial judge was wrong and that the employer relevantly   on the date of the accident, was Barbeques Galore and not Park Tec.

In determining the identity of an employer there is no magic touchstone .This case provides  good advice to both employers and employees to keep good records in relation to the employment contract.

Employers should make sure that key parts of employment contracts are in writing and signed by all parties.Importantly any major changes to an employment agreement are agreed to by an employee for consideration( see Martech v Energy World [2006] FCA 1004 @[141]-[142] per French J)  Employees in particular should keep a folder of all documents they receive pertaining to their employment and any variations to their employment. In our world such problems can easily arise when  working for groups with many related or subsidiary companies , long term secondments and transfers of business.  This record keeping  can be particularly useful, not just for ascertaining the employer’s  identity  but also is relevant to find   the terms of one’s employment.  The identity of the employer can be crucial in determining whom to sue.This choice can be a crucial one particularly where limitation questions arise. For example, in  Fair Work Australia where the time in which one needs to file proceedings for unfair dismissal is only  fourteen (14) days(see s.394(2)(a) of the Fair Work Act).  People who  sue the wrong employer may find that their action is statute barred  and may not get an extension (s.394(2)(b) & (3) )if they had sufficient material available to them to realise that the true  employer was someone else.

In this secular world sometimes the good shepherd does not know his sheep and  the sheep do not know him.

Jones ats Queensland Tertiary Admissions Centre Limited [2009] FCA 1382. (25 November 2009)

Justice Collier of the Federal Court has issued an interlocutory injunction in favour of an Applicant to stop her potential dismissal.

The Applicant, Elizabeth Louise Jones, was the Chief Executive Officer of the Queensland Tertiary Admissions Centre (QTAC). The Centre processes applications for admissions to the majority of undergraduate courses offered by universities in Queensland and, also Bond University, The Australian Maritime College in Tasmania and to some courses at universities in Northern New South Wales. It also processes applications for diploma courses in Queensland institutes of TAFE and other private providers of post-secondary education.

Ms Jones had been employed by QTAC since about 2002 without any issue being raised about her employment. From the beginning of this year, she was QTAC’s chief negotiator with the Australian Services Union (ASU) in the re-negotiation of the Enterprise Agreement governing the terms and conditions of QTAC’s employees. As a result of her involvement as the negotiator, she was the subject of a number of complaints by the ASU, named individuals and also some complaints, which were made anonymously. An investigator was instructed to provide a report, and as a result of the investigator’s report, QTAC was of the belief that Ms Jones had acted in a way which amounted to, “bullying or harassment of employees.” [28]. Ms Jones claimed that the investigation instituted by QTAC into her behaviour, was improper and that she was concerned, not only by the investigation, but also by the prospect that she could have her employment terminated.

In her application for an interlocutory injunction and for final relief, Ms Jones asserted that there had been various breaches of the Fair Work Act and her contract of employment, that damages were not an adequate remedy and that on the balance of convenience an interlocutory injunction should be granted pending a final determination of her action.

Ms Jones was successful in arguing that there was a serious question to be tried in that there had been a breach on a prima facie level of the Fair Work Act. Paragraph [17] of the judgement , sets out the summary of the submissions made by Ms Jones concerning the Fair Work Act. The summary reads as follows:

“17. In summary, the case submitted by Ms Jones as to the existence of a serious question to be tried can be summarised as follows:

• Section 340(1) of the Fair Work Act provides that a person must not take adverse action against another person because the other person has a workplace right, or has or has not exercised a workplace right.

• A “workplace right” means, inter alia, that a person is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body (s 341(1)(a)), or is able to initiate or participate in a process or proceedings under a workplace law or a workplace instrument (s 341(1)(b)).

• “Adverse action” is taken by an employer against an employee if, inter alia, the employer dismisses the employee, or injures the employee in his or her employment, or alters the position of the employee to the employee’s prejudice (s 342(1) Item 1). Threatening to take such action also constitutes adverse action (s 342(2)).

• Ms Jones’ workplace right was either in respect of either:
  -  Her role or responsibility in negotiating the Enterprise Agreement on behalf of QTAC: s 341(1)(a); or
  -  Her participation in the process of making an Enterprise Agreement: s 341(1)(b).

• In relation to Ms Jones’ participation in the process of making an Enterprise Agreement:
  -  Ms Jones had a role as a “bargaining representative” of QTAC for the purposes of the Enterprise Agreement negotiation;
  -  So far as relevant s 176 of the Fair Work Act provides that:
      A person is a bargaining representative of an employer, that will be covered by the Agreement if the employer appoints, in writing, the person as his or her bargaining representative for the Agreement (s 176(1)(d)).-  In a letter to the ASU dated 18 July 2009, Mr McAndrew said that the QTAC Board had confirmed that Ms Jones would continue to be QTAC’s “bargaining representative”. 

• QTAC has taken, and is proposing to take, adverse action against Ms Jones because she has exercised a workplace right in that:
  -  Adverse action has already been taken by QTAC in relation to the commissioning and conduct of the Carol Watson report, and informing QTAC staff of the report;
  -  QTAC proposes to take action in that it threatens to terminate or otherwise discipline Ms Jones because of the view QTAC takes of the Carol Watson report and the various complaints.”

The Judge did not find there was a prima facie breach of the contract of employment. However, in view of the serious question concerning the breach of the Fair Work Act, His Honour found there was a serious question to be tried and that damages would not be an adequate remedy. The Judge said,

“Discipline of a Chief Executive Officer for allegedly creating a culture of fear or terror in the workplace, be such discipline in the form of termination of employment or otherwise, is a very serious matter. In my view, it is likely that such a course of conduct would have a detrimental effect on Ms Jones’ reputation and imposes stigma which could adversely affect her future career prospects [49].”

His Honour , on balance ,favoured the making of the interlocutory junction sought [52] and that the difficulties that might cause QTAC in the granting of such an injunction could be ameliorated by the accelerated timetable for the hearing of the substantive issues in the proceedings [58].

This case is further evidence of the various uses which some of the provisions of the Fair Work Act will be able to reveal as useful adjuncts to employment disputes even for people who are not otherwise covered by industrial instruments.