Australian Liquor, Hospltality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Performance Security Services [1999] ICQ 24 (1999) 161 QGIG 126

rII lI 126 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETrE 11 June, 1999 #################ffl#################################ffl###########################-######################################## QUEENSLAND lNDUSTRIAL COURT Workplace RelationsAct 1997 -s. 360(2) - appeal from decision of industrial commission Australian Liquor, HospltalJty and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Performance Security Sen·ices (No. C3S of 1999) JUSTICE MOYNIHAN, ACTil\G PRESIDENT REPORT ON JUDGMENT (as edited) In giving his Judgment from the Bench on 17 Ma y, 1999, the Acting President said:- I June 1999 11 June, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 127 'This is au application by th e Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Um on of Employees, for an 101erlocutory injunction prohibiting the respondent from dismissing three named employ ees or to reins1ate them in the event of their having already been dismissed. It is brought at short notice. and hence the respondent has no1 had the opportunity to fully meet the case and indeed 1t might be said that the applicant has not had the opportunity 10 fully develop ii in respect of the lhree employees. The basis of the application is that the termination actual, proposed or threatened, 1s in breach of s. 231 of the lruiusrrial Organisarions Act 1997 because it was for a ·prohibited r eason' or''included a prohibiled reason' being lhe reason referred to by Section 238 l(h) of the Act. That prohibits termination because the person has a right 10 the benefit of an industrial instrument or an order of an industrial instrumenL The material, as it presently stands, is certainly capable of supporting a conclusion 1ba1 the 1ermination proposed, threatened or actual was in orde r to procu re the thre e employees in question to enter into sub-contracting agreements which would replace their entlllements under the relevant award. There is some indication from the material that the respondent would wish to advance a different basis, for example, that there was a termination for another reason or that there was a free and voluntary termination, if l can put it that way. But as J have said, the provis10ns of the Industrial OrganisaJions Act 1997 to which J have referred sim ply require that the prohibitive reason be among the reasons and there is a pri11U1facie case that that is so. One of the difficulties which arises in the case of at least two of the employees and perhaps the third is that the termination for whatever reason has already been effected and it follows that what is being sought is effec.1ively a reinstatement in circumstances where, I am informed, Olher arrangements may have been made for (he performance of the services which were provided by the three individuals in question. There has no< been time for the respondent's repi:e-sentative 10 obtain more detailed iMtructions. That being so I am reluctant to make an order without the respondent having had an opportunity to meet the case that prima facie appears from the material and to address the issues in relation to the consequences of reinstatement and arrangemenls that might have been made. The refusal for an order for reinstatement, of course, by no means precludes the applicant from pu rsuing the relief sought in respect of the three employees in question and in the event that their rights are vindicated by that or any Olher process then, so far as the material of plea is to show steps can be taken to rectify the wrongs that may have been done if their employment was terminated for an improper purpose. In the cir cumstances therefore, I do DOI propose granting interlocutory relief, at this stage, but to adjourn the application to the final determination of the relief or if intervening circumstances ju$1ify it perhaps to a sooner resolution. So, as I say, I decline, at this stag e, to grant the interlocutory relief sought. At the moment J will just adjourn the application to a date to be fixed.". Dated this first day of June, 1999. By the Court, [L.S.J E . EWALD, Industrial RegiStrar. Reieased : I June 1999 Appearances:- Mr J. Martin for and on behalf of Australian Liquor, Hospnahty and Miscellaneous Workecs Union, Queensland Branch, Union of Employees. Mr R. King of Deacons Graham & James Solicitors for Performance Security Services. #####################################################-######################################-################################ -- 1 of 1 --