Trego v Wesbeam Pty Ltd [2019] FCA 1030

Trego v Wesbeam Pty Ltd [2019] FCA 1030

The applicants established a strong prima facie case against Wesbeam that Mr Trego's dismissal and related treatment were connected with his union membership, role as delegate, involvement in enterprise bargaining and industrial activity, and that Wesbeam's stated reasons for dismissal were difficult to accept as the true reasons on the evidence then before the Court. The balance of convenience favoured full interlocutory reinstatement because Mr Trego faced imminent financial hardship, child support difficulties, loss of living stability and important non-pecuniary harms, and because failure to reinstate him could perpetuate a chilling effect on employees' use of union support. Wesbeam's...

Jurisdiction
Australia
Judgment Date
01 July 2019
Procedural Posture
Industrial Law Proceeding Alleging Contraventions of the Fair Work Act 2009 (cth) General Protections Provisions / Urgent Interlocutory Application for Reinstatement and Injunction Pending Final Hearing and Determination
Outcome
Interlocutory reinstatement granted for Mr Trego; CFMMEU interlocutory relief not ordered because Wesbeam gave an undertaking; no order as to costs.
Legal Topics
['termination of Employment' 'interlocutory Reinstatement' 'general Protections' 'adverse Action' 'coercion' 'industrial Activity' 'union Membership' 'enterprise Bargaining' 'balance of Convenience' 'prima Facie Case']
['industrial Law' 'employment Law'] ['termination of Employment' 'interlocutory Reinstatement' 'general Protections' 'adverse Action' 'coercion' 'industrial Activity' 'union Membership' 'enterprise Bargaining' 'balance of Convenience' 'prima Facie Case']

Case Brief

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Procedural Posture

Industrial Law Proceeding Alleging Contraventions of the Fair Work Act 2009 (cth) General Protections Provisions / Urgent Interlocutory Application for Reinstatement and Injunction Pending Final Hearing and Determination

Legal Issues

  1. 1 ['Whether the applicants established a sufficiently strong prima facie case that Wesbeam dismissed Mr Trego for prohibited reasons connected with workplace rights, union membership or industrial activity.' 'Whether the dismissal was capable of constituting coercion of employees in relation to workplace rights, union membership or industrial activity.' 'Whether the balance of convenience favoured interlocutory reinstatement of Mr Trego pending final determination.' "Whether interlocutory relief sought by the CFMMEU was necessary in light of Wesbeam's undertaking not to induce employees at the Dandenong factory to cease being CFMMEU members." 'Whether the reverse onus in s 361 of the Fair Work Act 2009 (Cth) should be taken into account on the interlocutory application.']

Ratio Decidendi

The applicants established a strong prima facie case against Wesbeam that Mr Trego's dismissal and related treatment were connected with his union membership, role as delegate, involvement in enterprise bargaining and industrial activity, and that Wesbeam's stated reasons for dismissal were difficult to accept as the true reasons on the evidence then before the Court. The balance of convenience favoured full interlocutory reinstatement because Mr Trego faced imminent financial hardship, child support difficulties, loss of living stability and important non-pecuniary harms, and because failure to reinstate him could perpetuate a chilling effect on employees' use of union support. Wesbeam's...

Court Disposition

Interlocutory reinstatement granted for Mr Trego; CFMMEU interlocutory relief not ordered because Wesbeam gave an undertaking; no order as to costs.

Orders

  • ["Until the final hearing and determination of this application, or further order, the termination of the first applicant's employment with the first respondent on 13 June 2019 is to be treated as invalid and of no force or effect, and the first respondent is to reinstate the first applicant in the employment he had...