Construction, Forestry, Mining and Energy Union v Downer EDI Engineering Power Pty Limited [2012] FCA 661

Construction, Forestry, Mining and Energy Union v Downer EDI Engineering Power Pty Limited [2012] FCA 661

The application to continue interlocutory injunctive relief was refused because the inferences supporting a contravention of s 346 were no more than barely possible or barely plausible, including in light of evidence from the decision maker that he was unaware of Mr Allen, and the balance of convenience told against...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
09 May 2012
Procedural Posture
Industrial Law Proceeding Under S 346 of the Fair Work Act 2009 (cth) Concerning Alleged Adverse Action / Application to Continue Interlocutory Injunctive Relief Granted Ex Parte on 4 May 2012
Outcome
Application for continuance of interlocutory injunctive relief dismissed.
Legal Topics
['interlocutory Injunction' 'adverse Action' 'industrial Activity' 'summary Dismissal' 'reverse Onus']
['industrial Law' 'employment Law'] ['interlocutory Injunction' 'adverse Action' 'industrial Activity' 'summary Dismissal' 'reverse Onus']

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Procedural Posture

Industrial Law Proceeding Under S 346 of the Fair Work Act 2009 (cth) Concerning Alleged Adverse Action / Application to Continue Interlocutory Injunctive Relief Granted Ex Parte on 4 May 2012

Legal Issues

  1. 1 ["Whether interlocutory injunctive relief restraining the termination of Mr Eddie Allen's employment should be continued pending hearing and determination of the substantive application." 'Whether the applicant had shown a sufficient prima facie case that the dismissal involved adverse action for a proscribed reason under s 346 of the Fair Work Act 2009 (Cth).' 'Whether the balance of convenience favoured continuation of interlocutory injunctive relief.']

Ratio Decidendi

The application to continue interlocutory injunctive relief was refused because the inferences supporting a contravention of s 346 were no more than barely possible or barely plausible, including in light of evidence from the decision maker that he was unaware of Mr Allen, and the balance of convenience told against relief given the project-specific employment, the unlikely prospect of trial before the project ended, the likelihood that compensation rather than reinstatement would be the remedy, and the difficulties of continuing Mr Allen and Mr Taylor in the close confines of the residential camp.

Court Disposition

Application for continuance of interlocutory injunctive relief dismissed.

Orders

  • ['The application for continuance of the interlocutory injunctive relief granted on 4 May 2012 is dismissed.' 'The applicant is to file forthwith its originating application.' 'The proceedings are adjourned to 9.30am on 16 May 2012 for directions.' 'No order as to costs.']