Health Services Union v Asmar (No 2) [2024] FCA 1442

Health Services Union v Asmar (No 2) [2024] FCA 1442

The interlocutory application was granted in part because the evidence established a strengthened serious question that the Branch has ceased to function effectively, in particular arising from the stand downs of Mr McGuinness and Mr Collins, failures to comply with undertakings regarding notification and cooperation, and the risk of further reprisal conduct. The balance of convenience favoured orders restraining Ms Asmar from performing the duties of Branch Secretary, staying the stand downs and investigations of Mr McGuinness and Mr Collins, and restricting adverse action against Branch employees absent sufficient notice.

Parties
Applicant: Health Services Union; First Respondent: Diana Asmar; Second Respondent: Rhonda Barclay; Third Respondent: David Eden; Fourth Respondent: Lee Atkinson; Fifth Respondent: Sherida Jacks; Sixth Respondent: Andrew Hargreaves; Seventh Respondent: Susan Stone; Eighth Respondent: Danny Harika; Ninth Respondent: Nick Katsis; Tenth Respondent: Aleksandros Ioanidis; Eleventh Respondent: Lisa Fisher; Twelfth Respondent: Koula Vasiliadis; Thirteenth Respondent: Toula Leggasick; Fourteenth Respondent: Dianne Stratton; Fifteenth Respondent: Diosie McCallum
Jurisdiction
Australia
Judgment Date
13 December 2024
Procedural Posture
Application for Interlocutory Relief / Interlocutory Judgment (orders Pending Final Hearing)
Outcome
Interlocutory relief granted in part
Legal Topics
Interlocutory Injunctions, Union Administration, Reprisal Conduct, Breach of Undertaking, Jurisdiction of Federal Court Under S 323 Fair Work (registered Organisations) Act 2009
Employment and Industrial Relations Practice and Procedure Interlocutory Injunctions Union Administration Reprisal Conduct Breach of Undertaking Jurisdiction of Federal Court Under S 323 Fair Work (registered Organisations) Act 2009

Case Brief

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Parties

Health Services Union

Applicant

Diana Asmar

First Respondent

Rhonda Barclay

Second Respondent

David Eden

Third Respondent

Lee Atkinson

Fourth Respondent

Sherida Jacks

Fifth Respondent

Andrew Hargreaves

Sixth Respondent

Susan Stone

Seventh Respondent

Danny Harika

Eighth Respondent

Nick Katsis

Ninth Respondent

Aleksandros Ioanidis

Tenth Respondent

Lisa Fisher

Eleventh Respondent

Koula Vasiliadis

Twelfth Respondent

Toula Leggasick

Thirteenth Respondent

Dianne Stratton

Fourteenth Respondent

Diosie McCallum

Fifteenth Respondent

Procedural Posture

Application for Interlocutory Relief / Interlocutory Judgment (orders Pending Final Hearing)

Legal Issues

  1. 1 Whether a serious question remains to be tried regarding the Branch ceasing to function effectively
  2. 2 Whether new circumstances strengthen the case for interlocutory relief
  3. 3 Whether stand downs and redundancies constituted reprisal conduct or breaches of undertakings

Ratio Decidendi

The interlocutory application was granted in part because the evidence established a strengthened serious question that the Branch has ceased to function effectively, in particular arising from the stand downs of Mr McGuinness and Mr Collins, failures to comply with undertakings regarding notification and cooperation, and the risk of further reprisal conduct. The balance of convenience favoured orders restraining Ms Asmar from performing the duties of Branch Secretary, staying the stand downs and investigations of Mr McGuinness and Mr Collins, and restricting adverse action against Branch employees absent sufficient notice.

Court Disposition

Interlocutory relief granted in part

Orders

  • Ms Asmar (first respondent) is restrained from carrying out the duties of the office of Branch Secretary, pending the final determination of the proceeding.
  • The stand down and investigation of Mr Jake McGuinness are stayed with immediate effect, pending the final determination of the proceeding.