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

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

There is a strong prima facie case that the issuing of a final written warning to Mr Zwart by Visy constituted adverse action because he exercised a workplace right, and the balance of convenience favours granting interlocutory injunctive relief pending final determination to restrain the employer from relying on the warning.

Parties
First Applicant: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION; Second Applicant: JONATHAN PHILIP ZWART; First Respondent: VISY PACKAGING PTY LTD; Second Respondent: TONY SCOTT; Third Respondent: ROBIN STREET
Jurisdiction
Australia
Judgment Date
31 August 2011
Procedural Posture
Interlocutory Application for Injunctive Relief / Interlocutory Stage Prior to Final Hearing
Outcome
Injunction granted pending determination or further order; applicants permitted to file amended application; other relief sought not granted at this stage.
Legal Topics
Adverse Action, Workplace Rights, Injunctive Relief, Balance of Convenience, Prima Facie Case, Reverse Onus of Proof
Industrial Law Adverse Action Workplace Rights Injunctive Relief Balance of Convenience Prima Facie Case Reverse Onus of Proof

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Parties

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

First Applicant

JONATHAN PHILIP ZWART

Second Applicant

VISY PACKAGING PTY LTD

First Respondent

TONY SCOTT

Second Respondent

ROBIN STREET

Third Respondent

Procedural Posture

Interlocutory Application for Injunctive Relief / Interlocutory Stage Prior to Final Hearing

Legal Issues

  1. 1 Whether the reliance on a final written warning constitutes adverse action under s 340 of the Fair Work Act 2009 (Cth)
  2. 2 Whether the issuing of a final written warning was because Mr Zwart exercised a workplace right
  3. 3 Whether injunctive relief should be granted restraining the employer from relying on the written warning

Ratio Decidendi

There is a strong prima facie case that the issuing of a final written warning to Mr Zwart by Visy constituted adverse action because he exercised a workplace right, and the balance of convenience favours granting interlocutory injunctive relief pending final determination to restrain the employer from relying on the warning.

Court Disposition

Injunction granted pending determination or further order; applicants permitted to file amended application; other relief sought not granted at this stage.

Orders

  • The Applicants have leave to file and serve an amended application.
  • Pending the hearing and determination of this proceeding, or further order of the Court, the First Respondent not act on, rely on or have regard to the final written warning issued to the Second Applicant dated 18 August 2011.